by Diane Rufino, April 28, 2023

The government is out of control. It has become far more powerful and intrusive than our Founding Fathers could have ever imagined. The U.S. Constitution is under attack. On one hand, the federal government is blatantly ignoring its constitutional limitations, usurping power not delegated to it by the Constitution. On the other hand, certain individuals and groups, many of whom are well-meaning, are pushing false solutions such as an Article V Convention, that threaten the Constitution and the inalienable and God-given rights it protects. This is exactly what is going on in North Carolina right now. The Convention of States Project (founded by Mark Meckler and Michael Farris in 2013) is very active in helping change the political climate so that the NC General Assembly will soon apply to Congress to call for an Article V Convention.

The John Birch Society has seen fit to inform Americans about the dangers of a so-called “Convention of States” and has been active in educating them as to the proper and rightful solutions to reigning in the federal government. The rightful and Constitutional remedies, as articulated by James Madison and Thomas Jefferson, are: (i) Nullification with Interposition, as the primary remedy; and (ii) Repeal of the 17 Amendment and the restoration of the US Senate as our Founding Fathers intended. There have been a number of successful victories in the individual States in this battle.

I, as well, believe it is my obligation and duty to educate fellow conservative and patriotic citizens, and that is the reason for this article. This article, by the way, is based on several articles that I’ve written, from interviews with John Birch Society leaders, and based on countless hours of research.

A growing number of Americans distrust the federal government. We know this. We are living it. According to a Pew Research Center poll published on June 6, 2022, “Only two-in-ten (20%) Americans say they trust the government in Washington DC to do what is right ‘just about always’ or ‘most of the time.’” Similarly, according to a Monmouth University poll, released on May 12, 2022, 79% of Americans surveyed said that they believe the country has “gotten off on the wrong track.”
Most Americans recognize that an all-out war is being waged against our republic and against every American’s individual liberty. Whether it’s mass shootings, gun control, abortion, election fraud, or the teaching of critical race theory and LGBTQ’s “gender identity” in public schools, virtually every conceivable assault has been used to divide, frustrate, and rile up Americans all across the country. Behind all of this smoke, a fire is raging. Our country is being divided. Our communities are being divided.

Some have suggested that the best way to put out this fire is with an Article V Convention. Pro-convention advocates and organizations, such as Convention of States Project (COS), again, founded by Mark Meckler and Michael Farris in 2013, argue that the Founding Fathers gave us Article V “for such a time as this,” taking the phrase from the biblical book of Ester.

Are they right? Is now such a time? Or will a convention that will open up the Constitution for amending or rewriting merely play into the hands of the very arsonists stoking the flames?

Before these questions can be answered, it’s important that we property understand Article V and what an Article V Convention is.

What is Article V?

Article V of the US Constitution reads: “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 fifth article articulates and directs the amendment process, which is always “state-led” and managed and intentioned by groups of specially-tasked individuals organized in a convention for a specific purpose (to alter or amend the Constitution). As the US Constitution is a social compact (ie, contract), this particular provision explains the only way our founding government document can be amended or changed. Article V provides two methods for proposing amendments to the Constitution and two modes of ratification. Either Congress proposes amendments (when two-thirds of both houses see fit and agree) or a state-led convention proposes amendments, if two-thirds of the state legislatures apply for it and then Congress calls it.

We hear today how liberal judges and Supreme Court justices view the US Constitution as “a living breathing document.” They take this approach so that they can take, for themselves, the liberty of “amending and updating the Constitution to comport with current social values.” What this view of the Constitution means is that judges and justices can “transform” and re-interpret the Constitution as they see fit. In other words, this is their “end- run around the Constitution” scheme. This is precisely why Article V is so very important. There is only one legal (constitutional) way to amend and update the US Constitution and that is by following and adhering to the procedures laid out in Article V – and not following some political/ideological/social alternative or some organization created specifically to push for such a Convention.

In either case, the proposed amendments officially become part of the 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.” If a new Constitution comes out of the convention, as it did in 1787 in Philadelphia, it could potentially have its own mode of ratification and the requirements of Article V would not apply. All 27 amendments to the Constitution, including the first 10 (The Bill of Rights), were initially proposed and passed by Congress and afterward, sent to the States for ratification. Never in the 230-plus years of American history since our Constitution was ratified has an Article V convention been used to propose amendments. And there’s a reason for that……..

The Framers of the Constitution created Article V in order to provide for a peaceful and orderly method to correct any defects or errors, such as a lack of safeguards of the people’s inalienable rights. By ‘defects’, they did not mean a lack of adherence to the Constitution or violations of the Constitution by elected officials. Instead, they meant a failure to protect or safeguard the God-given rights and the individual liberty of We the People. By amending the Constitution, such errors could be remediated without resorting to chance or violence. The Bill of Rights, for example, was a correction of a defect, which several key delegates to the Philadelphia Convention (Constitutional Convention) of 1787 noted and gave as their reason for not to attaching their names to the final product on September 20, and which several key States demanded as a condition of their ratification.

We all know that although the Convention in Philadelphia, which was called by the Continental Congress in response to dire concerns by several States, to amend the Articles of Confederation (the first constitution, creating the first American union), the result was that the delegates decided to scrap the Articles altogether and to draft a new constitution creating a new and different form of government. This was the brainchild of James Madison, the so-called “author of the Constitution,” who brought his Virginia Plan to Philadelphia that spring.

Troubles with the existing Confederation of States and the Articles of Confederation finally convinced the Continental Congress, in February 1787, to call for a convention of delegates to meet in May (1787) in Philadelphia “for the sole and express purpose of revising and amending the Articles of Confederation”….. “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” An honest review of our nation’s history shows that by 1786, Americans recognized that the Articles of Confederation, the foundation document for the new United States that was adopted in 1777, had to be substantially modified. The Articles gave Congress virtually no power to regulate domestic affairs, no power to
tax, and no power to regulate commerce. Without coercive power, Congress had to depend on financial contributions from the States (the Congress would submit “requisitions” to the States for funds), and they often time turned down requests. Congress had neither the money to pay soldiers for their service in the Revolutionary War or to repay foreign loans granted to support the war effort. In 1786, the United States was effectively bankrupt.

Moreover, the young nation faced many other challenges and threats. States engaged in endless wars of economic discrimination against commerce from other states and there was no “regulation of commerce” among States. Southern states battled northern states for economic advantage. The country was ill-equipped to fight a war and other nations wondered whether treaties with the United States were worth the paper they were written on. On top of all else, Americans suffered from injured pride, as European nations dismissed the United States as “a third-rate republic.”

And so, several of our Founding Fathers sought to remedy the defects of the Articles of Confederation…….

In September 1786, delegates from five states met at the Annapolis (MD) Convention (All states had been invited). Alexander Hamilton wrote a report from that meeting and sent a copy to the Continental Congress. The report chronicled the defects and inadequacies of the Articles of Confederation (especially regarding the issues aforementioned) and recommended that another “convention” be called to address said defects and inadequacies. In February of the following year (1787), the Continental Congress called upon all States to attend a convention to be held in Philadelphia in May 1787, again “for the sole and express purpose of revising the Articles of Confederation.” It was specific as to the date, place, and purpose for the Convention.

The Constitution already sets limits on the federal government via enumerated powers. The notion that
amendments can be used to limit or restrict powers that were never given to the federal government by the Constitution in the first place, or that an Article V Convention can be used to regulate the behavior of those who already violate the Constitution, is illogical. What isn’t granted to the federal government is not within its stockpile of powers.

What is an Article V Convention?

An Article V Convention is a federal convention designed to propose amendments to the federal Constitution. By definition, an Article V Convention is a federal Constitutional Convention. Black’s Law Dictionary, the nation’s premier legal dictionary used by law students, lawyers, and judges, has, since 1910, consistently defined the term “constitutional convention” as “A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution.”

A Constitutional convention is a formal gathering of deputies or delegates, chosen and recognized by the people they represent, for a common purpose. The convention in Article V exercises a sovereign function as defined in Black’s Law Dictionary. It is a convention with the purpose of proposing modifications to government. Seeing as the convention by definition represents the people at large, it has power and scope that supersedes established governments. As such, the convention cannot be limited because it is the epitome of the sovereign will of the people, and according to the Declaration of Independence, the People are the ultimate sovereigns. It is they who form their government and assign powers to it (which they can ultimately remove). The Declaration clearly reads: “it is their right, it is their duty, to throw off such government and to provide new guards for their future security,” referring to the people. James Madison invoked this right in The Federalist No. 40, to justify the actions of the delegates in the 1787 Constitutional Convention in Philadelphia, writing that it is “the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”

It was the general view at the time that conventions representative of the people were the only legitimate bodies able to draft, alter, or amend constitutions. Thomas Jefferson, in his Notes on the State of Virginia, observed: “The other states in the Union have been of the opinion that in order to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments.”

In the United States, we have what is known as the RULE OF LAW, which is fundamentally and foundationally based on the US Constitution, and then on the state Constitutions. Legislatures, both state and federal, have the sole authority to make laws that all, supposedly, must follow. An Article V Convention is quite different from a legislature.

An Article V Convention is comprised of delegates representing the People who possess the exclusive authority to write or amend a Constitution (This ability of the People to “alter or amend their government is articulated in the second paragraph of the Declaration of Independence). At a Convention, delegates can go through every single article in the Constitution and rewrite each one (if desired), remove some or all of them, replace some (or all), add or invalidate some, and occasionally, they can draft an entirely new Constitution. Constitutions establish and bind their representative governments to the powers expressly delegated to it – BY THE PEOPLE. As Supreme Court Justice Antonin Scalia commented in 2014: “Who knows what would, or could, come out of
such a Convention. It’s a Pandora’s Box.”

Under Article V, the US Congress calls the Convention when 2/3 of the State legislatures (= 66.6666%) submit applications for it to do so. That total would be 34 States. States, on their own and of their own accord, do NOT or can NOT call for the Convention. The ONLY power that is guaranteed to the State legislatures in the Article V option is that of APPLYING or making the application to Congress for the Convention.

Congress claims to have the power to not only call for the Convention but also to set its location, time, date, and manner in which delegates are to be assigned. This is NOT TRUE. All one has to do is read the plain text of Article V and the meaning is clear.

Proponents of a Convention of States defer to the “Necessary & Proper Clause” (Article I, section 8 of the Constitution) which states: “The Congress shall have Power… to make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the government of the United States, or in any department thereof.” This power grab is a figment of the mind of Congress. This is just another example of how the federal government has been engineering its way to assuming powers not intended and powers not granted.

We often look to the US Supreme Court and other federal courts to see what they have had to say on matters of Constitutional interpretation. And often, its not the wise thing to do. But a federal court in Idaho did take up a question on the validity and responsibility of an Article V Convention in its 1982 case State of Idaho v. Freeman.

The question in Freeman was not whether Congress has power to enact legislation pursuant to Article V, but rather how much power it has. The Freeman case called into question “the validity of Idaho’s act of rescinding its prior ratification of the proposed “Equal Rights Amendment” to the Constitution of the United States (ie, it’s Article V Convention for proposing an equal rights amendment). In other words, the two questions were: (1) Is a state allowed to rescind its prior ratification of a proposed constitutional amendment, and (2) Does Congress have the authority to extend the time period for the ratification of a proposed amendment?

In its decision (opinion), the Court declared that “a state has the power and right to rescind a prior ratification of a proposed constitutional amendment at any time prior to the unrescinded ratification by three-fourths of the states of the United States” and that “Congress’ attempted extension of the time for the ratification of the proposed Equal Rights Amendment was null and void.” This has absolutely no bearing on or relation to Congress’ vested constitutional power of calling a convention.

The US Supreme Court has not yet ruled explicitly on the power of Congress in the Article V Convention process. Why is that? Maybe it’s because the Court’s authority is ONLY to interpret the US Constitution and the Constitution is clearly limited on that issue.

Once the convention convenes, only the deputies or delegates to the convention (not the state legislatures or Congress) have the authority to draft the rules for governing the convention, to elect the president of the convention, and, most importantly, to write the actual text of the proposed amendments or potentially draft and propose an entirely new constitution. When assembled at the convention, the delegates are not subordinate to the state legislatures or Congress. They are the sovereign representatives of the people at large, with the convention being a sovereign body.

The Details of Article V –

Article V establishes two methods for PROPOSING amendments to the U.S. Constitution. The first method requires both the House and Senate to propose a constitutional amendment by a vote of two-thirds of the members present. This is the only method for proposing amendments that has been used thus far. Alternatively, Article V provides that Congress shall call a convention for proposing amendments upon the request of two- thirds of the state legislatures. This is the Article V Convention process (option 2). This method for proposing amendments, which scholars have debated at length, has never been used.

Article V also sets forth two methods for states to RATIFY amendments to the Constitution. Congress
determines which method the states must follow in order for proposed amendments to become effective. The first method of ratification requires three-fourths of the state legislatures to ratify an amendment to the Constitution. Alternatively, Congress may require that three-fourths of state ratifying conventions approve a proposed amendment. Congress has specified that this second mode of amendment only once – for the 21st Amendment, which repealed the 18th amendment establishing Prohibition.

For the first time in our history, a well-funded, highly-coordinated national effort is currently underway to call for a Constitutional Convention under Article V. The result of such a convention could be a complete overhaul of the U.S. Constitution and supporters of this un-tested option are dangerously close to succeeding. With special interest groups gaining momentum, including here in North Carolina, conservative advocates of the movement are just six states short of reaching the constitutionally-required 34 state goal. When such a convention is called by the required number of states, Congress has no right to refuse to call one.

There should be NO conservative advocates for an Article V Convention – at least not at this particular time in our nation’s history.

North Carolina is dangerously close to calling for an Article V Convention. Three proposals have been passed in the state house and have crossed over to the state senate. And two proposals have been filed in the state senate (still in committee).

This is where North Carolina stands right now:

— NC House Joint Resolution 151 (“Term Limits for Congress”). This resolution was filed in the state
house on February 20, 2023 and passed in the chamber on March 8. It crossed over to the senate on
March 9 and now sits with the Senate Rules Committee.
— NC House Joint Resolution 235 (“Application for a Convention of States”). This resolution was filed in the state house on February 28, passed in the chamber on March 8, and was sent to the senate on March. It now sits with the Senate Rules Committee.
— House Bill 648, or H.648 (“Faithful Article V Commissioner Act”). This bill passed the state house and has crossed over to the senate where it sits with the Senate Rules Committee.
— Senate Bill 487, or S.487 (“Term Limits for Congress”). This bill was filed in the state senate on April 3 and has been referred to the Senate Rules Committee. It passed only one reading in the Senate (all bills, in either chamber, must pass three readings).
— Senate Bill 628, Edition 1, or S.628 (“Article V Convention of the States”). It was filed in the state
senate on April 5 and has been referred to the Senate Rules Committee. As with S.487, this bill also
passed only one reading.

What Exactly Does Article V Say About Ratification of Amendments?

According to Article V, any amendments, whether proposed by Congress or a Constitutional Convention, officially becomes part of the U.S. 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 Congress.” When it comes to a Constitution, the mode of ratification is only relevant if amendments come out of the convention. If the convention delegates propose and draft an entirely new constitution which contains its own mode and requirements of ratification, then the new constitution would be ratified in accordance with the new mode and requirements of ratification, rather than what is demanded in Article VII of our current Constitution.

Our U.S. Constitution was officially ratified on June 21, 1788 when New Hampshire became the ninth state to ratify it (the bare minimum required for ratification under Article VII, which reads: “The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the same.”) On September 13, 1788, with only eleven states having ratified the Constitution, the Confederation Congress (the sole government entity under the Articles of Confederation) passed a resolution stating that it “has been ratified in the manner therein declared to be sufficient for the establishment of the same (Article VII), and such ratifications, duly authenticated, have been received by Congress and filed in the office of the Secretary.” Neither North Carolina nor Rhode Island had yet ratified the new Constitution. They were waiting for a Bill of Rights to be added to it.

In fact, the Articles of Confederation became obsolete before the current U.S. Constitution was ratified by all thirteen states. The first US Congress, created by the Constitution in Article I, became official on March 4, 1789 and George Washington was sworn in as the first President of the United States on April 30. On June 8, James Madison introduced a series of twelve proposed amendments to the Constitution for the individual states to consider, ten of which would be ratified in their conventions and would become known as our US Bill of Rights. North Carolina ratified the Constitution several months after Congress proposed the amendments and sent them to the states. NC ratified the Constitution on November 21, 1789. Rhode Island became the 13th state to finally ratify the document, on May 29, 1790 – nearly two years after its official ratification (according to Article VII). Clearly, the new Constitution was adopted before being “confirmed by the legislatures of every State.”

The Philadelphia Convention of 1787 was a classic “Runaway Convention.”

QUESTION: Can we Call Article V Option 2 a “Convention of States?

An Article V Convention is a federal function, a federal constitutional convention, called by the federal government for the States to amend the federal Constitution. An Article V Convention is a federal Constitutional Convention. An Article V Convention is NOT a “Convention of States. There is no such thing as an “Article V Convention of States.” The phrase “Convention of States” is nowhere to be found in the text of Article V. Labeling an Article V Convention as a “Convention of States” can be traced to September 6, 2010 when convention promoter Robert Natelson, an otherwise brilliant constitutional attorney, announced in a speech: “I’m going to put our concepts on “reset”…. The Constitution gives the convention a specific name – a convention for proposing amendments, and I think we should call it that or perhaps an Article V Convention, or a Convention of States.”

One man, Robert Natelson, in 2010, singlehandedly changed the name. Then, in 2013, attorney Mark Meckler founded the organization Citizens for Self-Governance, which that same year launched its Convention of States Project, now officially known as Convention of States Action, or simply, COS Action. The name COS is incorrect. ONLY the States can alter or amend the US Constitution under Article V – not some political/ideological/social alternative and certainly not any organization specifically organized for the purpose of pushing an Article V Convention.

An Article V Convention can propose an entirely new Constitution, as evident by the new Constitution drafted in Philadelphia in 1787 Constitutional Convention and as evident by the new constitutions that have already been drafted and are ready to be submitted to a Convention, if called.

If an Article V Convention is not the Remedy to Divesting the Federal Government of All the Powers It has Unconstitutionally Usurped Over the Years, Then What are the Better Remedies? The answers are: (1) Nullification with Interposition, and (2) Repeal of the 17th Amendment. Nullification is implicitly grounded in the text of the US Constitution. Specifically, there is the Tenth Amendment, which is merely a restatement of federalism, a unique design feature of the government created by the Constitution of 1787.

The federal government has authority to act only in accordance with the enumerated powers delegated to it, while the States continue to enjoy their “reserved powers.” As James Madison explained in his Federalist Essay No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.

As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”

In other words, when the federal government assumes powers that belong to another sovereign, such as the States (10th Amendment) or the People (9th Amendment), that is an unconstitutional usurpation of power and any law, policy, executive order, agency or department, or even a federal court opinion made in pursuance of that usurpation of power is null and void and unenforceable, which is the very definition of “Nullification.” States are under no obligation to enforce or carry out their provisions. This is TYRANNY.

The second remedy is the repeal of the 17 Amendment. Originally, as designed by our Founding Fathers in the Constitution of 1787, the US Senate was to be second of the two-chamber Congress, comprised of representatives selected directly by the individual state legislatures. In other words, it was the chamber designated to represent the States and their interests, as sovereign states, in D.C. It was the reason why US Senators were given a longer tenure in office (6 years) and stricter criteria were required for candidates.

In 1913, that all changed with the adoption of the 17th Amendment (proposed by Congress). With that

1913, that all changed with the adoption of the 17th Amendment (proposed by Congress). With that
amendment, Senators were to be selected and elected by the people at large. There is no allegiance to the State and therefore, the States have most their most effective voice in government.

The Pros and Cons of an Article V Convention –

Both sides of the aisle have their pet proposals for making changes to the United States Constitution. Partisan proposals include such topics as a balanced budget amendment, reigning in government, public financing of elections, abolish the Electoral College and revisiting the Second Amendment. In each instance the promoters claim that their proposed convention could be limited to a single issue. Since 1787 all 27 amendments to the Constitution have been passed without calling a convention.

An organization calling themselves the Convention of States (COS) has been promoting the idea that the answer to all our nation’s problems can be solved by having 34 states apply to Congress under Article V to convene a Constitutional Convention (Con–Con). To persuade conservative state legislators into supporting the convention, COS has promised that a convention would be limited to a single issue, such as a balanced budget.

Montana has voted NO on a federal Con-Con every session since the mid-1980s. Dark money is being spent all over the United States promoting this bad idea. The only defense against this onslaught of propaganda has been private citizens working to inform their neighbors and representatives to oppose the convention. Convention of States has been working very hard in North Carolina for the past several years.

QUESTION: How could any organization make a “promise” that such a Convention would, or could, be limited to a single issue? Article V refers to the authority of State Conventions to call and control such a historic event.

PROS – There is only one “PRO” and that is that such a Convention will accomplish the goals that the people demand. That, of course, depends on 3/4 of the States agreeing to the proposed changes, and also depends on the required number of States ratifying the amendment or amendments in a timely fashion. [Remember that the 27th amendment was originally proposed in 1791 and sent to the state legislatures at that time, yet it was only adopted, finally, on May 5, 1992]. It only took 201 years for the States to finally adopt it.

CONS — Two hundred and thirty-five years ago America held its first and only Constitutional Convention. A new constitution was born in 1787. It is considered to be a one of the finest legal documents ever written, being on par with the Magna Carta and believed by many to have been divinely-inspired. Holding a new constitutional convention today, as some are suggesting, could end up being a disaster.

In an interview with the Los Angeles Times on Jan. 20, 1982, President Ronald Reagan stated “Well,
constitutional conventions are kind of prescribed as a last resort, because then once it’s open, they could take up any number of things.” And in 2014, US Supreme Court Justice Antonin Scalia said: “I certainly would not want a Constitutional Convention. Who knows what would come out of that.” Again, on December 8, 2015, Justice Scalia repeated his warning against a new convention when he warned the
Federalist Society that “A Constitutional Convention is a horrible idea. This is not a good century to write a constitution.”

There are several problems with holding an Article V Convention (Constitutional Convention) for amending the Constitution, including the following:

1. The Constitution offers no guidelines or rules on how a convention would work or if a convention can be limited to considering one amendment or subject. Since the Constitution offers no guidance on how applications for a convention should be counted, scholars have offered various legal opinions on the counting of convention applications, but it is generally agreed that all applications from two-thirds of the state legislatures (34 states) should be on the same issue for a convention to be called.
2. Although some of the proposals for an Article V Convention may have merit, the problem with using such an approach is that is poses a danger to our existing form of government with all its checks and balances. The Congress in 1787 (the Continental Congress) tried to limit the Philadelphia Convention with the simple language of the invitation sent out to all States: “Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” However, the delegates ignored those instructions and ended up rewriting the Articles of Confederation giving us a completely new constitution and different structure of government. The Philadelphia Convention was the perfect or classic example of a “Runaway Convention.” To gain approval for their new Constitution the delegates even changed the ratification requirements from 13 states to 9.
   [NOTE: A ”Runaway Convention” is an uncontrollable convention – one incapable of being bounded by the call of the Convention. It is a convention where delegates (States) can hijack the process with particular issues and demands of their own].
3. A modern-day Article V Convention would have the same power to change everything. Conventions are
   sovereign bodies representing the people at large, it has power and scope that supersedes established
   governments. An Article V Convention cannot be limited. Did the representatives in 1787 expect a “runaway convention” in Philadelphia? After all, the goals of the Convention were clearly articulated.
4. While our nation was blessed to have men the caliber and character of George Washington, James Madison, Thomas Jefferson, and Benjamin Franklin back in 1787, do we honestly have such caliber of intellectuals and strategists today? Can we trust putting the fate of our Constitution, including the Second Amendment, in the hands of today’s politicians and special interests? James Madison, father of the Constitution, warned in 1788 that a second convention “would no doubt contain individuals with insidious views seeking to alter the very foundation and fabric of the US Constitution.”
5. The US Constitution was borne out of the spirit of independence – an independence that the original 13
   colonies had just fought a war for. They were men of principle and great patriotism. We are too far from that revolutionary spirit of 1776; we have forgotten how badly Liberty was demanded and treasured. Furthermore, do we have such a caliber of Americans any longer?
6. An Article V Convention would be open to the undue influence of special interests and political ambitions. An Article V convention would open the Constitution to revisions at a time of extreme gerrymandering and polarization amid unlimited political spending. It could allow special interests and the wealthiest to re-write the rules governing our system of government. There is a very real possibility that instead of limiting the power of the federal government and reverting to the limited government of our Founders (originalism and textualism), its power may be increased.
7. We have to ask ourselves: Do we want to preserve our precious Constitution, or are content to transform it.
8. We have to ask ourselves: The federal government, with all its branches and departments, already ignores the limitations the Constitution places upon it. Do we honestly believe that all of a sudden, it will respect and adhere to new amendments and new limitations?
9. With respect to an Article V Convention, there is clearly a lack of convention rules. The States believe it is within their right to establish convention rules (after all, Article V provides the strict “State-led” alternative for proposing amendments to the Constitution) while Congress believes it has the absolute right to not only establish the rules but also to direct how delegates are to be selected. To other words, a convention would be an unpredictable Pandora’s Box; the last one, in 1787, resulted in a brand-new Constitution. One group advocating for a “Convention of States” openly discusses the possibility of using the process to undo hard-won civil rights and civil liberties advances and undermine basic rights extended throughout history as our nation strove to deliver on the promise of a democracy that works for everyone. In today’s political, ideological, and social climate, which party do you honestly think would win out on the issue of Article V Convention rules and delegate selection – the federal government (ie, the US Congress) or the States, which are the actual and contractual parties to the Constitution and the creation of the second US union of States.
10. There will likely be the very real threat of legal disputes. Being an Article V (or special) Convention, it is, in a sense, a sua sponte organization. In law, “sua sponte” describes an act of authority taken without formal prompting from any other party. In short, no judicial, legislative, or executive body would have clear authority to settle disputes about a convention, opening the process to chaos and protracted legal battles that would threaten the functioning of our democracy and economy.
11. The application process poses some uncertainty. There is no clear process on how Congress or any other
    governmental body would count and add up Article V applications, or if Congress and the states could restrain the convention’s mandate based on those applications. There is already a big debate as to whether recissions by States for an Article V Convention should count (which they should, by decreasing the number of applications).
12. There is a possibility of unequal State representation. It is unclear how states would choose delegates to a convention, how states and citizens would be represented in a convention, and who would ultimately get to vote on items raised in a convention.

Why the Article V Convention Process is a Threat –

Although pro-convention campaigns are being proposed on the right and left, Democratic and Republican legislators alike have opposed calls for a new convention due to the threat it poses to Americans’ civil rights and liberties. During the 2023 legislative sessions, Republican-controlled legislative chambers in Idaho, South Dakota, North Carolina, Utah, and Wyoming voted against calls for an Article V convention proposed by conservative groups. Likewise, Democratic controlled legislatures in Delaware, New Mexico, Maryland, Nevada, and Colorado have recently rescinded their applications for an Article V convention for a balanced budget amendment in recent years. In the last five years, numerous legislative committees and chambers controlled by both parties rejected Article V convention applications in New Mexico, Idaho, Colorado, Maryland, Hawaii, South Dakota, Massachusetts, Kansas, Virginia, and New Hampshire. Unfortunately, North Carolina is getting closer and closer to approving a resolution to call for an Article V Convention (for term limits).

Simply put, an Article V constitutional convention is a dangerous and uncontrollable process that would put Americans’ constitutional rights up for grabs.

At a time when extreme gerrymandering has created unprecedented polarization and big money buys access and influence for a few very wealthy special interests, a new constitutional convention would lead to chaos; the interests of everyday Americans would be shut out of the ultimate closed-door meeting. There would be no way to limit the scope of a constitutional convention and no way to guarantee that our civil liberties and constitutional process would be protected.

The constitutional rights and civil liberties that could be impacted in an Article V convention include the
freedom of speech, freedom of religion, privacy rights, the guarantee of equal protection under law, the right to vote, immigration issues, and the right to counsel and a jury trial.

Please help defeat the second convention Madison warned us about by contacting your representatives and registering your opposition to any joint resolution that might come up in the 2023 legislative session that calls for enacting an Article V Convention or a Conference of States (same meaning, semantic head fake).

CURRENT ARTICLE V CONVENTION EFFORTS & CAMPAIGNS –

The unknowns surrounding a constitutional convention pose an unacceptable risk, particularly in the current polarized political climate. Given how close calling a new convention is, it’s time to spotlight that risk and sound an alarm for the preservation of our Constitution. Too few Americans are even aware that a Constitutional Convention can be called, let alone that there would be no checks on its scope and further that the process to call one is well underway and being underwritten by some of the nation’s wealthiest individuals.

1. The Balanced Budget Amendment Effort – While there are several ongoing pro-convention campaigns, the effort to add a federal balanced budget
   amendment (BBA) to the Constitution has progressed furthest. Throughout the 1970s and 1980s, dozens of state legislatures passed resolutions or “calls” for an Article V convention to propose a balanced budget amendment. Some BBA proponents claim that by 1989, 32 states had called for a convention for a balanced budget amendment. Concerns about a potential runaway convention, plus an intensified drive to push a BBA through Congress, led over a dozen states to rescind their convention calls between 1989 and 2010. However, conservative interest groups have revived the convention plan, persuading more than a dozen state legislatures to pass Article V convention calls since 2011.
   Due to the threat of an Article V convention, several state legislatures have rescinded their Article V BBA convention applications, including Delaware (2016), New Mexico (2017), Maryland (2017), Nevada (2017), and Colorado (2021). Had those five states not rescinded their applications, BBA convention proponents would be at 33 states, just one state short of the constitutionally-required number of 34.
2. The Convention of States Effort – Another conservative effort to call a new constitutional convention, known as the “Convention of States,” is also underway. This proposal calls for a convention for the broad purposes of limiting the powers of the federal government, imposing fiscal restraints on federal spending, and applying term limits for Members of Congress. The vague language in the Convention of States proposal perfectly illustrates the threat of a runaway convention. In September 2016, the Convention of States held a mock convention to come up with proposed amendments to the Constitution. The results show how they plan to use a convention to implement an extreme agenda into the Constitution and how a convention cannot be limited. The changes they proposed (found here) would drastically alter the federal government and put civil rights and needed programs, including Social Security, Medicare, and Medicaid, at risk.
3. U.S. Term Limits – Since 2016, six states have passed Article V convention applications on term limits. In my state of North Carolina, legislators are trying to pass a Resolution to call on Congress to convene an Article V Convention for term limits. Bills have been submitted in the House (2 of them) and in the Senate (2 of them). Again —
   NC House Joint Resolution 151 – “Term Limits for Congress”
   NC House Joint Resolution 235 – “Application for a Convention of the States”
   House Bill 648 – “Faithful Article V Commissioner Act.”
   Senate Bill (S.487), Edition 1 – “Term Limits for Congress”
   Senate Bill (S.628), Edition 1 – “Article V Convention of the States”

CONCLUSION –

An Article V Convention is NOT the solution. Would you trust your Constitution and your country, including
your inalienable and God-given rights, with an Article V Convention?
To repeat, the Rightful, Constitutional Solutions are:

1. NULLIFICATION – “The Rightful Remedy,” as articulated by Thomas Jefferson and James Madison.
   Roots of this doctrine are in the concept of federalism and articulated once again in the 10th Amendment.
2. REPEAL OF THE 17th AMENDMENT – and re-establishing the US Senate as the Founders originally
   envisioned and created. The Senate, representing the individual, sovereign States is the perfect “Check” on the federal government.

References:
Christian Gomez, “The New American (subsidiary of The John Birch Society),” The New American (July 11,
2022 edition). Referenced at: https://www.TheNewAmerican.com
List of State Applications for an Article V Convention –
https://en.wikipedia.org/wiki/List_of_state_applications_for_an_Article_V_Convention
NC Bills – http://www.ncleg.gov

APPENDIX: NULLIFICATION WITH INTERPOSITION

NULLIFICATION: The Founders’ Solution to Federal Overreach
by Peter Rykowski, July 11, 2022 edition of The New American

Honest observers of our nation’s governmental system must agree on one point: The federal government has far exceeded its constitutional limitations. From regularly violating Americans’ God-given rights (including gun control and vaccine mandates) to exercising powers not delegated to it by the Constitution (including the Department of Education, education policy, conditioned federal grants to the states, and the Federal Reserve), the federal government is blatantly ignoring the US Constitution. State governments have an obligation to police the federal government for overreach and to resist it. But they cannot do so by just any means they choose; they must use the correct method. Some in the conservative movement are promoting an Article V Convention as the solution to an out-of-control federal government.

However, this is a false solution that only threatens the very Constitution they seek to make more workable and the God-given rights it protects. Instead, rather than seeking to change, amend, or rewrite the Constitution altogether, state officials ought to enforce it through the founding principles of Nullification and Interposition (which Jefferson termed “The Rightful Remedy”). Nullification and Interposition together are indeed the rightful remedy to resist federal tyranny. Together, they give States the power and authority to declare unconstitutional federal laws, policies, executive orders, departments and agencies, and even federal court opinions “null and void” and refuse to enforce them within their borders. In addition to being constitutionally sound, nullification and interposition have been, and are still being, successfully used to push back and resist federal overreach.

What Is Nullification and what is Interposition?

Nullification refers to the principle that, when the federal government usurps power not delegated to it by the US Constitution, the individual States can and should act to ensure those usurpations are not enforced and, by extension, are null and void. In fact, those unconstitutional federal actions are null and void from the start. As Thomas Jefferson articulated in his Kentucky Resolutions of 1799:

“RESOLVED, That this commonwealth considers the federal union, upon the terms and for the
purposes specified in the late compact, as conducive to the liberty and happiness of the several states:
That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to
its obvious and real intention, and will be among the last to seek its dissolution: That if those who
administer the general government be permitted to transgress the limits fixed by that compact, by a
total disregard to the special delegations of power therein contained, annihilation of the state
governments, and the erection upon their ruins, of a general consolidated government, will be the
inevitable consequence: That the principle and construction contended for by sundry of the state
legislatures, that the general government is the exclusive judge of the extent of the powers delegated to
it, stop nothing short of despotism; since the discretion of those who adminster the government, and
not the constitution, would be the measure of their powers: That the several states who formed that
instrument, being sovereign and independent, have the unquestionable right to judge of its infraction;
and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that
instrument, is THE RIGHTFUL REMEDY….”

Nullification is firmly grounded in the text of the US Constitution, although implicitly. The Tenth Amendment restates the separation of powers scheme of our government structure between the States and the federal government (known as “federalism”), clearly dividing sovereign powers (those to the federal government by the enumerated powers clearly listed in the Constitution and all remaining powers, minus those prohibited in the Constitution, to the States). Any attempt by the federal government to usurp powers not delegated to it means that it unconstitutionally takes them from their rightful sovereign – the States (10th Amendment) or the People (9th Amendment). Each sovereign has the right and the duty to make sure that that they retain their rightful sovereign powers.

And then there is Article VI which states: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof…. shall be the Supreme Law of the Land.” This clearly implies that laws, etc, not in accordance with the Constitution are null and void.

Additionally, the Constitution delegates only specific, enumerated powers to the federal government. The States, by contrast (and as mentioned above), retain the vast majority of powers – something that James Madison affirms in The Federalist No. 45. This is further cemented, or restated for emphasis, by the Tenth Amendment, which makes absolutely clear that all powers not granted by the Constitution to the federal government are reserved to the States and to the People).

It should be noted that Nullification goes hand-in-hand with Interposition. While “nullification” is the
acknowledgement that a particular law is null and void and therefore unenforceable, interposition is the meat of state resistance to federal overreach. Interposition is an inherent right of every American state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to “interpose” itself between the federal government and the people of the state by taking action to prevent the federal government from enforcing laws that the state considers unconstitutional. Usually such “action” is in the form of state laws, executive orders, and state court policy which actually direct the State not to comply with the unconstitutional federal act.

When the federal government usurps its power, state nullification (and interposition) under the Tenth
Amendment and Article VI is a duty and not just an option. Article VI also declares that state legislators,
executive officials, and judges “shall be bound by Oath or Affirmation, to support this Constitution.” In the face of federal overreach, which state official is faithful to his oath: the one who acquiesces to the usurpation or the one who resists it? Clearly it’s the latter.

Nullification stretches back to the Founding Fathers themselves. For example, James Madison in penning his Virginia Resolutions of 1798, wrote:

“RESOLVED….. That this Assembly doth explicitly and peremptorily declare, that it views the
powers of the federal government, as resulting from the compact, to which the states are parties; as
limited by the plain sense and intention of the instrument constituting the compact; as no further valid
that they are authorized by the grants enumerated in that compact; and that in case of a deliberate,
palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are
parties thereto, have the right, and are in duty bound, to INTERPOSE for arresting the progress of the
evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining
to them.”

In The Federalist No. 46, Madison stated: “Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case… the means of opposition to it are powerful and at hand. The disquietude of the People, their repugnance and, perhaps, refusal to cooperate with the officers of the Union, the frowns of the executive magistracy of the State, the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised.”

Again, the vernacular (the terms) “Nullification” and “Interposition” were first used just over 10 years later, in the Kentucky and Virginia Resolutions, authored by Thomas Jefferson (in 1798 and then in 1799) and James Madison (in 1798), respectively. These resolutions condemned the Alien and Sedition Acts (but mainly the Sedition Act), passed by Congress during John Adam’s administration and which imposed criminal penalties on individuals who published criticism of the federal government, as unconstitutional. Furthermore, they asserted that state governments had inherent sovereign authority to nullify and interpose the Acts along with any other unconstitutional federal laws, and they urged cooperation with other States to resist the Acts’ provisions.

Although no other State joined with Kentucky and Virginia in this constitutional crisis issue, this was largely due to state legislators fearing arrest under the Alien and Sedition Acts and to many States being controlled by the Federalist Party (the party of John Adams and his administration), which supported and passed the Acts.

Nonetheless, this incident illustrates the sturdy historical and constitutional basis for state nullification and interposition.

The Rightful Remedy –

Not only is nullification and interposition constitutionally and foundationally sound, but it has been termed by Jefferson as “The Rightful Remedy” and by Madison as “a duty. These are the rightful remedies for countering federal overreach and the States are “duty-bound” to act to resist such unconstitutional laws, policies, and other measures. The most obvious reason is that state nullification and interposition are legal attempts to enforce – not change – the Constitution, a document enshrining a federal government of limited powers.

Of course, the federal government currently operates far outside its constitutional boundaries, having grown far beyond what the Founding Fathers could have ever imagined. However, this massive growth was not because of the Constitution itself or any of its provisions, but rather because government officials have consciously, intentionally, or simply ignoring or misinterpreting it. Indeed, if the Constitution were fully enforced and/or if the offices and officers of the federal government were forced to strictly adhere to the Constitution, the federal government would shrink by at least 80 percent. A Constitutional Convention, or Con-Con, ignores this important fact in its push to change or amend the Constitution. But, especially in today’s political and cultural climate, any changes to the Constitution would surely authorize a far-larger federal government than the Constitution given to us by our Founding Fathers (1787) permits.

Additionally, nullification and interposition have an immediate effect, as opposed to an Article V Constitutional Convention, which could take decades or even longer to be concluded. For example, the movement to achieve a so-called Balanced Budget Amendment (BBA) via an Article V Convention began in earnest back in the 1970’s. A half century later, BBA advocates still have not succeeded in calling a convention. Similarly, the first Convention of States (COS) resolution was passed in early 2014. More than eight years later, COS is only about halfway toward reaching the 34-state (three-fourths) threshold for calling a convention.

If federal government overreach is such a serious problem, and it certainly is, the convention process is far too slow and unpredictable, as well as far too dependent on multiple States acting in unison, for it to be a serious solution. (Of course, the purpose of Article V is to correct potential errors and defects in the Constitution and NOT to rein in the federal government). By contrast, nullification and interposition can take effect immediately, as long as the state legislature passes proper legislation preventing enforcement of the unconstitutional federal law and the governor signs it. Its implementation is not dependent on the actions of 33 other states or by approval from the federal judiciary.

For nullification and interposition to succeed, state officials must be bold and courageous. Any State acting to enforce the Constitution and prevent the enforcement of unconstitutional federal edicts will likely face significant opposition from the federal government, judiciary, media, the progressive left, big business, Hollywood, and others. Reining in the federal government will not come without a fight. The government will claim that nullification is unconstitutional, as determined by the Supreme Court in the 1953 case of Cooper v. Aaron, 358 U.S. 1 (1958).

Of course, that was clearly an erroneous opinion.

However, if our state leaders are bold and courageous, nullification and interposition, unlike an Article V Convention, can immediately and effectively push back against unconstitutional federal actions. The States just need to be the States that our Founding Fathers expected them to be. State antagonism with the federal government is the final and most powerful of checks and balances that needs to be applied in order to keep the federal government within its constitutional boundaries.

Nullification v. Secession –

Opponents of nullification and interposition sometimes confuse it or lump it together with secession, which is the act of leaving the Union (as the American colonies did when they announced, through the Declaration of Independence, that they were severing their ties with Great Britain in order to be independent) or claim it will lead to national destabilization. Such claims have even come from COS Action. In early 2021, for example, a regional director of the organization, David Schneider, spoke out against a nullification bill in South Dakota. Among other statements, he claimed that nullification helped cause the Civil War and stated: “Wholesale nullification leads to anarchy and nullification of the Constitution itself.”

Such claims, however, have no basis in reality. First, nullification under the Tenth Amendment and under Article VI only targets those federal edicts with no constitutional basis (ie, are unconstitutional), while constitutional federal actions are upheld under this principle. In other words, nullification and interposition actually UPHOLD the Constitution and cannot, as Schneider claims, “nullify the Constitution.”

Nullification/interposition and secession are very different principles. Rather than leaving the Union or
undergoing a violent rebellion, or rejecting the Constitution’s authority, nullification and interposition uphold both the Constitution and the Union in the way the Founding Fathers intended. In this way, particularly since an Article V Convention threatens limited government as well as the Constitution and the God-given freedoms and liberties it protects, secession and an Article V Convention resemble each other far more closely than secession and nullification/interposition.

Unlike secession, nullification and interposition had no role whatsoever in causing the Civil War, nor was it used to defend slavery. In fact, opponents of slavery, most prominently in Wisconsin, used nullification to prevent the enforcement of the Fugitive Slave Act of 1850, a law that unconstitutionally infringed upon individual freedom and state sovereignty. Not only this, but when the US Supreme Court ordered Wisconsin to obey the law, the state’s legislature and supreme court nullified that decision. The conflation (merging) of nullification and secession simply doesn’t add up under scrutiny.

Nullification in Action –

Nullification and interposition have been successfully used multiple times throughout US history, with the Kentucky and Virginia Resolutions and the nullification/ interposition of the Fugitive Slave Act being some of the more notable examples. However, nullification is not just a thing of the past. It is still being used today, and even moreso in recent years, to push back against federal usurpations.

For example, state and local governments are employing nullification and interposition to counter federal gun-control efforts and even, most recently, to counter the recent Supreme Court opinion in the 2023 case of Dobbs v. Jackson Women’s Health Organization (in which the Court overturned Roe v. Wade.) Already, 15 States, either through legislation or gubernatorial executive orders, have enacted measures preventing, to various degrees, the enforcement of federal gun control laws. Additionally, counties are taking their own steps (understanding that local sheriffs have the greatest power when it comes to enforcing laws). By mid-2021, 61 percent of all counties across the country had passed “Second Amendment sanctuary” measures and that percentage continues to grow. While many of these measures are symbolic resolutions, some counties have enacted substantive ordinances.

One of the strongest of these measures is Missouri’s “Second Amendment Preservation Act,” enacted in mid-2021. Among other provisions, it catalogs a wide-ranging list of unconstitutional “federal acts, laws, executive orders, administrative orders, court orders, rules, and regulations” which effectively include the 1934 National Firearms Act and the 1968 Gun Control Act. The Missouri Act then declares that such policies “shall be invalid to this State, shall be specifically rejected by this State, and shall not be enforced by this State.” It also includes enforcement mechanisms to ensure its provisions are followed. State governments have also recently enacted legislation taking steps to bypass the unconstitutional Federal Reserve, thus nullifying it and enforcing the Constitution’s monetary provisions. For example, 42 States have abolished taxes on precious metals such as gold and silver, while 3 have affirmed their validity as legal tender, thus encouraging their use. Meanwhile, Texas has taken the step of creating a state precious metals depository, further reducing state dependence on the federal government.

Nullification and interposition are not confined to conservative-leaning states. For example, to date, 19 States have fully legalized marijuana in the face of a federal ban, and many more have legalized it for medical use. Regardless of one’s views on the issue of marijuana use, the federal government’s prohibition is unconstitutional under the Tenth Amendment. Accordingly, state governments have authority to nullify and interpose in order to prevent enforcement of the federal government’s ban. And they have done so with great effect.

Many other pro-nullification bills have been enacted by state governments in recent years, and many more such bills have been introduced in state legislatures. The latter include legislation to nullify/interpose federal vaccine mandates, pro-abortion court rulings, unconstitutional federal deployments of state National Guard units, and unconstitutional federal spending, and to create formal processes for nullifying any unconstitutional federal action.

Nullification is already being used effectively and successfully, and many other promising bills and initiatives exist. However, it is imperative that state legislators enact the remaining measures, and that all state officials courageously enforce the Constitution in the face of heavy opposition. Wouldn’t this send a powerful message to the federal government and its representatives and officials?

Accordingly, patriots must actively educate these officials and the general public about the benefit of
Nullification and Interposition and about the dangers of an Article V Convention. By taking such action, we can significantly rein in the federal government.