Mike Farris, Chancellor of Patrick Henry College and the head of the Convention of the States Project has been in Richmond at the General Assembly lobbying for Virginia to join his project. [read_more]The House of Delegates and the Senate will vote this week on proposals to join the Convention of States. In the House it is Scott Lingamfelter’s bill, HJ 497. Details of the bill can be found here. The Senate bill, SJ 269, was introduced by Ryan T. McDougle, details here. The vote in the House is not predicted to be close but the Senate is a different story.
Mike Farris and Senator Black have had an ongoing debate about the merits of a Convention of the States. Senator Black has always been open to debate on this subject but he has never, ever, been anything but a gentleman in his discussions. Senator Black would never, ever, call names or threaten anyone. I wish I could say the same about Mr. Farris, but I cannot. Senator Dick Black is our most stalwart conservative in Richmond. He has proven over and over that he will never cave on core conservative values. He carries the banner for all of us, often against incredible odds, and unbelievable pressure from all sides, both inside and outside the government. He has always carried the conservative banner in a way that makes us proud, always the kind, caring, gentlemen that he is at his core.
Now comes Mike Farris who so is so anxious to expand his project that he is threatening the best and most courageous conservative we have in Richmond. Three times he has threatened to mount a primary against Black if the Senator continues to disagree with him! He will primary Senator Black over something that is not even a core conservative principle, but a subject that can be debated by well-meaning people on both sides of the issue. We have tried to present both sides of the issue on this blog but we we cannot abide threats to Senator Black. Mr. Farris needs to stop these threats immediately and apologize to Senator Black.
Below is Mike Farris’s statement to Senator Black about the COS and Senator Black’s rebuttal in red.
Michael Farris, J.D., LL.M., Constitutional Lawyer & Chancellor of Patrick Henry College
At the 1787 Constitutional Convention in Philadelphia, George Mason of Virginia insisted that there would come a day when the federal government would abuse the authority it was given under the Constitution. Mason therefore insisted that the States be given the power to propose amendments to the Constitution to rein in the Federal Government. Mason said that Congress would never propose amendments to restrict federal power. And he has been proven right.
Mason was in a minority of only THREE delegates to the 1787 convention that took this view.
Dick Black’s “Urgent” Appeal is false, deceptive, and demeaning to all Virginians. Here’s why:
1.BLACK CREATES A FALSE IMPRESSION OF IMPENDING CHANGE TO THE CONSTITUTION.
Black claims that “Virginia will vote to change the Constitution of the United States in a few days.” This is a far cry from the reality both as to the timing and as to the scope of the Convention. Virginia is set to vote on whether to begin the process of considering the proposal of specific amendments to the Constitution. We are years away from making any amendments (34 states must first approve the call, the convention must be held, and 38 states must ratify any proposals coming out of the convention before any change is made to the Constitution.
Black claims that Virginia could be the “tipping point” to get to 34 states. This is based on the idea that many states have already called for a convention, and that adding Virginia to the list would bring us to the needed number.
This claim is demonstrably false and nothing better than a blatant attempt to incite panic.
This claim is not false. There is nothing in Article V that requires a petition for an Article V convention to specify a certain topic. It only requires a petition to be made. Mr. Farris has no legal foundation to make his claim that a petition for an Article V convention is required to identify a specific purpose for its request, nor that there must be 34 matching petitions asking to address the same subject in order for the 34 state threshold to be met. If he has such proof, he should provide it.
The two specific resolutions in front of the Virginia General Assembly are for an Article V Convention to limit federal power and jurisdiction (HJ 497) and an Article V Convention to propose a Balanced Budget Amendment (HJ 499).
Three states have passed the first application, and 24 states have passed the second. Virginia would not be the 34th state for either measure.
Black’s assertion that Virginia could be the tipping point is based on the clearly erroneous assumption that Article V applications can never be rescinded.
Senator Black makes no such claim. In fact, in 2004, then “Delegate” Black was co-sponsor of a resolution to rescind Virginia’s previous application for an Article V Convention that stated in part:
“WHEREAS, the operations of a convention are unknown and the apportionment and selection of delegates, method of voting in convention, and other essential procedural details are not specified in Article V of the Constitution of the United States;”
This passed the House of Delegates 91-5 (Lingamfelter voting Yea) and the Senate 37-0. (HJ 194 – 2004)
Every serious Article V legal scholar understands that rescissions are valid. I personally litigated a case regarding rescissions of ratifications of proposed constitutional amendments under Article V. The federal court holding is that rescissions of ratifications are indeed binding. Idaho v. Freeman, 529 F.Supp. 1107 (D.Idaho 1981).
The ruling on this case was stayed by the court on Jan. 25, 1982. As such it is technically not binding.
The simple truth is that we are years away from voting on actual amendments to the Constitution. If these applications pass, Virginia will be the 4th state to call for a Convention of States to restrict federal power and the 25th state to call for a Balanced Budget Amendment. These applications can only trigger a convention where amendments will be debated, drafted, and then sent on to the states for ratification. They will “change” the Constitution only if ratified by 38 states.
According to Mr. Farris’ own organization, we are not years away. Rita Dunaway, who works for Mr. Farris, stated in a public meeting on Jan. 10th that they were no more than one year away (two at the outside) from calling a convention.
2. LIBERAL ORGANIZATIONS CITED BY DICK BLACK ARE NOT “PUSHING FOR THIS.”
Black claims that George Soros, Code Pink, MoveOn.org, New Progressive Alliance and 100 other liberal groups “are pushing for this.”
None of these entities have endorsed or “pushed for” the Convention of States (HJ 497) or a Balanced Budget Amendment (HJ 499) in Virginia or any other state.
There is nothing in Article V that requires state petitions to be for matching subjects, nor is there any legal foundation that can be pointed to that can limit an Article V convention to the subjects specified in the petitions of the states.
Not one of these entities even mentions Article V on their website (georgesoros.com, codepink.org, moveon.org, occupywallst.org, andnewprogs.org). Not once. Moveon.org mentions Article V of the Wisconsin Constitution and Article V of the Geneva Convention. The Occupy Wall Street website includes reader comments discussing Article V. But not once is there any mention of Article V of the U.S. Constitution by these organizations. Pure silence.
MoveToAmend.org lists all the supporters of amending the constitution for the purposes of limiting money in politics. Wolf-Pac.com (funded by George Soros) specifically lists an Article V convention as a preferred tool to amend the Constitution. Under Section 3, it states, “Once we have found those states that are the most receptive to joining this battle with us we will focus our time, effort, and money on them until we get that vital and historic first state to call for an Article V. Convention for the purpose of limiting the influence that money has over our political process. According to Article V of our Constitution, Congress must call for an amendment-proposing convention, “on the application of the Legislatures of two thirds of the several States”, and therefore 34 state legislatures would have to submit applications.” http://www.wolf-pac.com/the_plan
Dick Black’s source for this claim is a website operated by a group that is seeking an Article V convention for a wholly different purpose. This group seeks to repeal the Citizens United decision by the Supreme Court. The organization listed are endorsing the repeal of Citizens United. No organization with that movement has “pushed for” or endorsed either the Convention of States (HJ 497) or a Balanced Budget Amendment (HJ 499) in Virginia or any other state.
Black’s claim that these liberal organizations are “pushing for this”—referring to the bills slated to be voted on by the Virginia General Assembly—is a blatant falsehood.
There is no legal foundation that allows anyone to limit the scope of an Article V convention. It doesn’t matter why Mr. Farris seeks to call one. Once a convention is convened, it can consider any amendment it chooses. If Mr. Farris has any legal foundation to back up his claims, he should provide it.
- WE DO KNOW HOW DELEGATES ARE CHOSEN
Dick Black says that there is no law which states how delegates to the Convention are chosen. There was no such law in place in 1787 when Virginia chose its delegates to the Constitutional Convention. The legislature had the inherent power to appoint delegates—who represent Virginia—and it did so. The Virginia General Assembly has that same power today, and it comes from Virginia’s sovereign power and Article V of the Constitution.
An Article V convention will be called by Congress, not the states. As such Congress has the power to determine whether or not the States will even be represented at said convention. If Congress does decide to include the states, they can decide to give states proportional representation, similar to the Electoral College. If Mr. Farris has any legal foundation to back up his claims, he should provide it.
4. THE CONVENTION WILL BE LIMITED TO PROPOSING AMENDMENTS THAT LIMIT THE POWER OF THE FEDERAL GOVERNMENT.
Black claims (citing a video by the John Birch Society) that a convention cannot be limited to the subjects identified in the state applications, but will necessarily throw open the entire constitution. In fact they claim that our original Constitution is invalid because it, too, was adopted by a “runaway convention.”
This argument has been thoroughly discredited.
Dick Black needs to explain why he is listening to and promoting these dangerous people, who have admitted that they will pursue secession if their “plans” for nullification are unsuccessful.
It is not Senator Black that needs to provide proof of his claims. It is up to Mr. Farris to provide proof of the legal foundation that he claims will allow him to limit the scope of an Article V convention. No such legal foundation exists. If Mr. Farris has such legal foundation to back his claim, he should provide it.
Furthermore, the convention delegates themselves decide upon the rules governing what can be discussed at the convention. Just like every convention convened throughout history. One of the first orders of business at a convention is to vote upon the rules of said convention. The delegates themselves make that decision. They are not bound by the subject matter of any specific petition for a convention.
- CONGRESS HAS NO CONTROL OVER THE CONVENTION ONCE IT IS TRIGGERED.
You can see from the text of Article V itself that Congress only has two duties with regard to the Convention mechanism. It aggregates the applications and “calls” the Convention once 34 states apply for a Convention to propose a certain type of amendments. Then it chooses between two specified methods of ratification for any amendment proposals that come out of the Convention—each of which requires 38 states to ratify.
The term “call” used in Article V is a legal term of art with regard to the Convention process. To “call” a Convention is not to control it, determine its rules or decide who represents the parties! Rather, to “call” a Convention is to announce the date, time and location for it to facilitate its occurrence. Virginia “called” the Constitutional Convention in 1787. But did it unilaterally determine the rules or select the delegates from other states? Of course not!
Review any “call” for a convention and one of the things you will see spelled out is who shall be eligible to be a delegate, how many delegate “votes” there will be, and where those votes shall come from, including whether or not there will be weighted voting, among many other issues. The “call” for a convention does not merely set the time and place. It provides the structure for the convention.
The 1787 convention did not have such a requirement that Congress “call” the convention, but Article V of the Constitution does. If Mr. Farris has any legal foundation to prove otherwise, he should provide it.
Some of the arguments made by Dick Black are matters of opinion, and as such, are not untruthful per se–even if they have been rejected by most legal scholars. But when he says that Virginia could be the “tipping point,” and when he says that George Soros and Moveon.org are “pushing for this,” he has spoken untruthfully about material facts.
Mr. Farris provides to you a vision of how he believes an Article V convention should be called and run. If it indeed ran that way, we would probably support him. Unfortunately, he has no legal foundation to back up his claims, and he is putting the very founding document of our Country at great risk if he is wrong.
We are not willing to take that chance.