After a long and brilliant career, Phyllis Schlafly has taken a terribly wrong turn.
Throughout her career she has accomplished so much good. But today, she stands firmly on the side of a huge, unfettered, unconstitutional federal leviathan, along with the icon of the pro-abortion movement, the late Chief Justice Warren Burger.
It makes sense that someone like Burger, who gave us Roe v. Wade, might oppose efforts to restrain a corrupt federal government. However, Schlafly’s opposition is a baffling deviation from her lifetime of activism. Based on a single letter from this activist justice, Phyllis Schlafly stands against the American people and their right and obligation to act to restrain the federal government through an Article V amending convention.
The Burger/Schlafly argument is on the wrong side of history—both factually and philosophically. Both contend that a Convention of States would be dangerous because it might go "runaway." In other words, such a convention might consider issues and propose amendments beyond the scope of authority granted by the states in their applications for a convention. This argument is actually based on defamation against the Framers of the Constitution. In fact, Schlafly has argued for years that the Constitution itself was the result of a “runaway convention.”
Professor Rob Natelson has proven the “runaway convention” theory is based on the fallacious argument that Congress called that convention. (Read his definitive debunking of Mrs. Schlafly’s position at the American Thinker.) However, the reality is that states called the Convention—seven states not only called it but appointed their delegates before Congress even endorsed it. And the states controlled their delegates, giving them explicit instructions to render the federal Constitution adequate for the exigencies of the Union. (For a more thorough treatment of this subject, see Natelson’s Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,“ 65 Fla. L. Rev. 615 (2013).)
And more constitutional experts have weighed in on the matter. Michael Farris, for example, is the founder and chancellor of Patrick Henry College where he teaches Constitutional Law courses. He’s also the founder of the Home School Legal Defense Association and one of the few lawyers ever to argue an Article V case at the Supreme Court.
Farris has shown the ratification process went through a preliminary phase when Congress and all 13 state legislatures approved the new process proposed by the Constitutional Convention—just like the Articles of Confederation required. And Farris has definitively taken apart Schlafly’s opinions in another recently published piece.
Her position is akin to arguing that George Washington was a great hero but, sadly, he was also a British spy. The whole “runaway convention” theory begins with an unacceptable contempt for both the Framers and the Constitution itself. It ends with a complete lack of historical knowledge.
Today, there is a strong movement afoot towards an Article V amending convention for the purpose of restraining the federal government’s scope, power and jurisdiction. The movement for a convention for this limited and specific purpose is led by the Convention of States project, headed by Farris. (I believe in this effort so much, my organization Citizens for Self-Governance hosts and funds the project.) The COS Project has amazing allies in this battle. Radio talk show giant and best-selling author Mark Levin has written a book, The Liberty Amendments, promoting an Article V Convention. Rush Limbaugh, Sean Hannity, and Glenn Beck—as well as many other thought leaders—support Levin’s efforts towards a convention.
Political leaders, like Senator Tom Coburn (R-Okla.), Senator Ron Johnson (R-Wisc.), and former Gov. Mike Huckabee, have also pledged their support for this project. Additionally, over 100 state legislators from 30 states met this month at Mt. Vernon to begin drafting the rules for a Convention. At the December meeting of the American Legislative Exchange Council in Washington, DC, hundreds of state legislators attended a plenary lunch where they learned about the efforts. Afterwards, they participated in a breakout session where they learned the particulars on calling a convention.
Three states—Florida, Virginia, and South Carolina—have all pre-filed legislation calling for a convention, and similar legislation is expected in 20 to 25 states in the 2014 sessions.
So, why is all this momentum happening? Only the people, acting through the states, can restrain the scope, power, and jurisdiction of a federal government no longer operating within the bounds of the Constitution.
Most people want to restrain the federal government. This is a bipartisan issue. In fact, in recent polling a full 60 percent of Americans say the federal government is too big and powerful. Fifty-four percent say government is generally burdensome and impedes people from improving their lives, while only 41 percent say government is primarily a source of good and helping people improve their lives. Fifty-three percent of Americans say the federal government is a direct threat to our liberty and freedom. Those are astounding numbers! Washington, DC is completely out of touch with the rest of the country and no longer feels bound by constitutional restraints.
For decades, Congress, presidents, and even the Supreme Court have treated the Constitution as merely a “parchment barrier” to their desire to impose their will on citizens. And those were the good ole days. Now they don’t see it as a barrier at all. They brazenly and routinely ignore the Constitution so they can design society as they see fit. This generally involves taking power away from the sovereign citizen and consolidating it in Washington, DC.
The second clause of Article V of the Constitution of the United States was specifically inserted to allow the people, via the states, to restrain a tyrannical federal government. George Mason argued passionately that it was absurd to believe a government run amok would ever pass amendments to restrain its own power. The Framers unanimously agreed. That’s why the great men who gave us the Constitution inserted the second half of Article V. They wanted to give us the right, power, and obligation to call a convention to restrain a federal government run amok.
Look around. It’s amok.
The time has come to use Article V and call a convention. Phyllis Schlafly deserves our immense respect for a lifetime of accomplishment, but she is no constitutional scholar. In her defiance of the Convention of States, she is standing against some of the finest constitutional scholars and thinkers in this country. Most Americans will choose to stand with Michael Farris, Prof. Robert Natelson, Prof. Randy Barnett, Prof. Nick Dranius, Prof. Lawrence Lessig, Levin, Limbaugh, Hannity, Glenn Beck, Sen. Coburn, Sen. Johnson, Gov. Huckabee, and hundreds of state legislators who support an Article V Convention.
Sadly, Phyllis Schlafly stands almost alone on the fringe of conservatism, with no significant support from legitimate scholars or notable commentators, clutching feebly to a letter written in the 1970s by liberal activist Chief Justice Warren Burger.
Should a stellar conservative leader such as Schlafly be reduced to aligning with the liberal Burger against the American people’s right and obligation to restrain a runaway federal government?
Definitely not. She is unwittingly leading her supporters into a desperate, sad place of permanent citizen impotence and government overreach.
Instead, she should change course and align her values with the Founders. We welcome her to join the fight, bring her troops, and help the people, via the states, to restore liberty.