March 2018
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The Constitutional Corner – Is This Insanity?


Last Friday, I attended a debate between Virginia Delegate Bob Marshall and Patrick Henry College Chancellor Mike Farris over what else? the Convention of the States (COS) issue.  It was not the first time these two men had debated this issue (somehow they remain friends despite these heated debates), nor is it likely to be the last.  The event was hosted by the Norfolk Chapter of The Federalist Society on the campus of Regent University, which made it possible for Regent Law Schoolstudents to attend.  I didn’t get an exact count, but it appeared about thirty attended.


I’ll admit upfront to a certain bias, as anyone who has read my previous columns knows; but let me try to summarize the main points each side made (BTW, I was disappointed in both).


Farris (in my estimation) wasted much of his allotted opening statement time by establishing his credentials – to a group that was largely already familiar with them.  He then framed his argument around this point: the framers understood that three elements were required for good government: good people, good policy and good structure.  They knew that “good people” would forever be illusive; all men (and women) were sinful and not to be trusted with too much power.  So they tried their best to give us a structure which recognized that reality.


Unfortunately, that structure has been abused to create our greatest national problem: $18 Trillion in “official” national debt (and an additional $148Trillion in unfunded liabilities) — amounting to $500,000 for every man, woman and child in America.  This problem won’t be fixed by electing “good people.”  A few good people, like recently retired Senator Tom Coburn, who repeatedly highlighted fraud, waste and abuse in his annual “Pig Book”, simply aren’t able to change things.  Coburn was not able to get even one of the $400 Billion in wasteful spending projects stopped.  “We’re living in political fantasy land if we think electing more good people is going to solve this problem, said Farris.”


Farris next unloaded both barrels: “The people that are helping to kill liberty in this country are two: the people who are doing everything they can in Washington, D.C. to abuse their power, and the people in the state legislatures, like Delegate Marshall, who are propping them up by defeating the only structural limitation in the text of the constitution to stop them.”  Marshall acted like he’d heard that before.


Farris then indicated he would address the fear factor of a convention but instead spent considerable time demonstrating why the 1787 Convention was not a “runaway convention” as many opposed to a COS insist (although why they do so is unclear to me, what happened in 1787 has little bearing on what might or might not happen in 2015).  Farris then eviscerated the credibility of Justice Warren Burger’s (now) famous letter to Phyllis Schlafly warning that there would be no way to limit a constitutional convention (Burger makes the oft-repeated mistake that an Article V convention is a “constitutional convention,” it clearly does not fit Black’s Law Dictionary’s definition – an Article V convention has no the power, in and of itself, to “frame, revise, or amend” our Constitution).


One bit of new information that Farris presented (new at least to me) was that there had been 20 state applications for an Article V convention specifically to reverse Roe vs Wade ( only lists 19) and that the John Birch Society had been instrumental in getting at least six of the state legislatures to repeal their applications.  That was sad to hear.


Bob Marshall began his opening statement by reading Article V, which had already been read by the moderator, more time wasted.  He then proceeded to demonstrate from Madison’s 1787 notes that the convention method was a “last-minute” addition to the Constitution, although why this was important was lost on me.  Next, Marshall went through a litany of the features of the Articles of Confederation that were changed by the new Constitution to demonstrate that they were indeed significant changes.  He seemed to be trying to counter a Farris point that the changes were otherwise, except Farris had never made such a point (and I recorded the debate).


Marshall did demonstrate, from the Congressional record, that there were at least some in 1787 who thought the convention had been an act of the Congress and not of the States, and that they thought it had been limited to revising the Articles.  Indeed, this last point was debated immediately after the new Constitution was received by Congress, but the debate did not conclude that a breach of the convention’s authority had taken place.  Marshall then quoted Hamilton from June 18, 1787 to prove that Hamilton acknowledged the delegates were exceeding their authority.  And perhaps in Hamilton’s mind they were; Farris had already pointed out that the New York delegation’s instructions contained confusing references to both revising the Articles and rendering them “adequate to the exigencies of the Union.”  Once again, why do we think the actions of 1787 presage those of a convention held today with delegates instructed quite differently?  Marshall then quoted from Federalist 40; interestingly, Farris had referred to the same essay to make some of his points.  I guess I need to read that one again.


Marshall next suggested that the delegates to a convention will be some of the same people (judges, governors, congressmen) who got us into our current problems, inferring that they should not be trusted.   As to Farris’ contention that the COS will operate under one-state-one-vote rules, Marshall countered that everything he could find through an internet search suggested voting at the convention would instead be proportional.  What Marshall didn’t reveal is that Republican-controlled legislatures have nearly the same voting advantage either way.


Perhaps the most remarkable of Marshall’s statements was that he would support a lot of the ideas behind the amendments being proposed by Mark Levin and others today, but that these changes could be passed by statute.  Left unsaid was why they haven’t been.  “The states caved (on the 16th and 17th Amendments)… Our “guardians” (i.e., in the states) are toothless, bark-less and brainless.  Why should you trust these people to protect you when they clearly didn’t do it in the past.”  Good point.  Why indeed?  To that point, if there is no one who can be trusted, why do we even go through the motions of government?  Why bother electing anyone?


Marshall then insisted that the Constitution wasn’t the problem, there are plenty of controls available to keep government in check –they are simply not used.  He made a reference to Article 3’s “jurisdiction stripping” power.   “It’s not the policy, it’s not the structure, it’s the people.  You need better people.”


So Marshall leaves us with a conundrum:  he insists all we need are “better people,” but he then implies such people don’t exist (he and Virginia Senator Black excepted, of course).


Albert Einstein is often quoted defining insanity as “doing the same thing over and over again and expecting different results.”  We’ve been trying to elect “better people” for how long now?  Apparently not long enough, so let’s keep trying some more.  Meanwhile, the debt clock’s ticking getting louder and louder.


Am I suggesting it is insane to want better people in government or that trying to find and elect them is a useless enterprise?  Certainly not.  The insanity comes, in my estimation, with expecting that good people alone will fix our myriad problems.



Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution.  Comments on this essay and ideas for future essays should be sent to

3 comments to The Constitutional Corner – Is This Insanity?

  • Perhaps *Insanity* applies to me! I know this is a controversial issue and people I have great respect for are on opposing sides of the issue. Please let us know what you think.

  • This well thought-out comment was submitted by Sue Long:

    I completely oppose an Article V convention and the proposed “Compact” among States. I never supported such a dangerous threat to our values and our Nation. Congress or judicial activism would likely require that the voting at such a convention be in proportion to population, and thereby dominated by liberal states like California. They would probably repeal the Second Amendment, and insert expansive rights to taxpayer-funded abortion. There is nothing good that can result from an Article V convention or “Compact” among the States, because Congress and the Courts will not feel restrained by a new amendment any more than they comply with existing text. Even proposing an Article V convention or “Compact” has the harmful effect of devaluing the Constitution we cherish.

    The original Constitutional Convention was made possible by rules of secrecy against media interference. That is impossible today and thus the liberal media would obtain everything it wants. Pinning one’s hopes on an Article V convention or “Compact” today is like a bankrupt man turning to gambling to solve his family’s financial problems. Hard work, in electing good people who defend our existing Constitution, is what is needed. The pie-in-the-sky, dangerous proposal of an Article V convention or “Compact” among the States should be rejected.

    Andrew L. Schlafly, Esq.
    Attorney practicing before the U.S. Supreme Court and ten U.S. Courts of Appeal

  • The use of phrases like “would likely” and “would probably” are dead giveaways; Andrew doesn’t know what would happen at a Convention any more than I do. What I am sure of is that the longer wait before using this option that the Framers gave us, for precisely this circumstance, the longer we have to experience more decisions like Obergefell v. Hodges and Burwell v. King.

    As to the strawman of proportional voting, Andy has not done the math; proportional voting (as calculated by the current Electoral College allocation) results in nearly the same Republican advantage as One-State-One-Vote.
    But as soon as a supposed liberal dominance at the convention is posited, all sorts of doom is possible, such as a repeal of the 2nd Amendment. But that in itself reveals a lack of understanding of natural rights. Is it the 2nd Amendment that grants us the right to keep and bear arms (as the current White House website states), or does that right come via the natural and unalienable right of self-defense?

    “There is nothing good that can result from an Article V convention or “Compact” among the States, because Congress and the Courts will not feel restrained by a new amendment any more than they comply with existing text.” There are manifold benefits that can result from a Convention. Congress is not restrained by the existing text because the Supreme Court has amended that text to mean whatever they have needed it to mean. If you doubt me, please consult U.S. Constitution, Analysis and Interpretation, at your nearest government website. Countless Supreme Court decisions have taken license with the ambiguous language of the Framers. Unambiguous language is the only thing that will constrain Congress, language the Court can no longer “stretch.”

    “…electing good people who defend our existing Constitution, is what is needed.” No, what is needed is to restore the “chains of the Constitution” that no longer exist. “Good people” will always disappoint. Those “good people” must still be bound, as Jefferson instructed, with a Constitution that can no longer be mis-interpreted.

    Recent Supreme Court decisions show clearly that amendments to the Constitution are desperately needed. Congress will not propose them, the people must through convention.

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