Article V and Eagle Forum

A friend recently wrote to me she was confused about the issue of Article V and a state-initiated Constitutional amendment process and the opposition of at least one conservative organization. This letter is my attempt to address those concerns.

It’s been said that “politics makes strange bedfellows”, but it’s equally true that politics sometimes causes inexplicable estrangements. Ultra-conservative Phyllis Schlafly at Eagle Forum has strangely come out in opposition to the Article V Convention of States movement. There is much to admire about the life work of Mrs. Schlafly and her advocacy for traditional American values and opposition to establishment kingmakers. Unfortunately, her penchant for political wrangling sometimes puts her at odds with true principle. Schlafly expresses her opposition to Convention of States (COS) by saying that electing the right politicians is enough to effect change, implying that restoring the Constitution is too dangerous. She recently came out on the Breitbart News Network as a Donald Trump supporter expressing confidence that only Trump can set America on the right course. She seems unconcerned that Trump is a self-aggrandizing, ruthless businesman whose guiding principle is simply to win and have his own way. In that way she’s an advocate of the strong man rather than the rule of law.

Nevertheless, a few of her assertions about COS need to be addressed and corrected. Let me use her words as a framework as follows.

Shlafly introduces her opposition to COS by writing, “Attacks on the U.S. Constitution are coming from all sides – sadly even some misguided conservatives have joined the Left on this issue.  One liberal professor – in the pages of The New York Times – calls our Constitution “imbecilic.” Another claims it contains “archaic” and “evil provisions.”  This is simply propaganda. The COS movement was started by Tea Party conservatives who are tired of national politicians ignoring the Constitution. We are Constitutional advocates. Our goal is to introduce a few key amendments to restore the authority of the states to require the federal government to follow the Constitution.

Schlafly says, “They are fooling themselves when they suggest that Article V creates a path to bypass Congress with a convention of states. In a convention setting, the U.S. Congress would get a major say in how the process will work.” Not so. Article V specifies two ways to amend the Constitution, one through the national Congress and a second through our state legislatures. This provision for a state-initiated process was put in place by the founders because the states created the federal government and needed a way to control their federal government.

Schlafly says, “The only power the states have under Article V is the opportunity to submit an application (petition) asking Congress to call a convention. Hundreds of such applications have been submitted over the years, with widely different purposes and wording.” Mrs. Schlafly is right about why the state-initiated process has failed in the past. What is new about COS is that we are coordinating on a national level to ensure that all the states employ identical wording so that Congress can’t reject our applications because they don’t all agree.

Schlafly says, “Article V states that Congress “shall” call a convention on the application of two-thirds of state legislatures, or thirty-four (34) of them. The key question is this: how will Congress count valid applications? “ The answer seems obvious. Congress will count one for each state, and thirty-four applications requires a convention. That’s what Article V specifies.

Schlafly says, “If Congress ever decides to act, Article V gives Congress exclusive power to issue the call for a convention to propose “amendments” (plural).  The Call is the governing document which determines all the basic rules such as where and when a convention will be held, who is eligible to be a delegate (will current office-holders be eligible?), how delegates will be apportioned, how expenses will be paid, and who will be the chairman.” None of what Schlafly asserts is in Article V of the Constitution.

Schlafly says, “Article V also gives Congress the power to determine whether the three-fourths of the states required for ratification of amendments can ratify by the state legislature’s action or by state conventions.” It’s important to understand that all of the amendments to the constitution thus far have been initiated by Congress. Congress has never needed the participation of states to propose amendments, so they have no need to take over a state-initiated convention. The COS movement is an attempt to implement the alternative state-initiated amendment process. If we lose control to Congress, that would be no different than it has been in the past, so that is hardly a reason to avoid the attempt.

Schlafly says, “The most important question to which there is no answer is this: how will convention delegates be apportioned?  Will each state have one vote which was the rule in the 1787 Philadelphia convention? Or will the convention be apportioned according to population (like Congress or the Electoral College)?  Nothing in Article V gives the states any power to make this fundamental decision. If Congress decides apportionment will be determined by population, more populous states will control the outcome.  Do you want California or New York deciding how the U.S. Constitution should read?”  The number of delegates from each state is irrelevant because each state gets one vote. Article V clearly calls for 3/4 of the states to ratify.

Schlafly says, “Advocates of an Article V convention can hope and speculate, but they cannot assure us that any of their plans will come true.” This is true and perhaps the deciding issue in all of Phyllis Schlafly’s confusion. The most likely outcome of the COS movement is that it will fail and federal politicians will continue to run rough-shod over the Constitution. However, a positive outcome of the COS movement would restore the Constitution and allow Americans to once again be proud of our nation. The COS movement is the only attempt to rein in the power of the federal government by asserting the sovereign authority of the states.

I can’t get in Phyllis Schlafly’s mind to know why she opposes COS. Her advocacy of Donald Trump suggests she is an advocate of a strong federal government ruled by a powerful individual leader. Can she really believe that our strong man beating the other strong man is the answer to America’s partisan civil war? Barack Obama has taught us that one man can steer the federal government in unconstitutional directions. Proponents of COS see that we are at a unique moment in American history. Whereas the power of the federal government is rooted in a few populous liberal states, conservative administrations control the vast majority of other states. Since the COS movement is driven by the individual states, we have an opportunity to shore up Constitutional requirements to re-assert control by the states and restrict the overreaching power of the federal government. With all due respect, Phyllis Schlafly at the age of 91 seems part of the old guard whose ideas no longer reflect the authority of the governed over their government.