By Steve Byas

In a spirited debate that slid into some personal exchanges, the Norman Tea Party hosted a debate on the issue of whether the way to rein in an out of control federal government is through a Convention of the States.

The debate, held March 20th at the First Assembly of God in Norman, pitted Senator Rob Standridge and constitutional lawyer Michael Farris arguing for such a convention, while Charlie Meadows and Bob Donohoo, president and vice president, respectively, of the Oklahoma Conservative Political Action Committee (OCPAC), took a strong position against the proposal.

The Norman Tea Party, led by Mallory and Jim Harvey, turned to Norman minister, Dr. James Taylor, the Pastor of Norman's Christ Church as the moderator.

Farris argued that there are good conservatives on both sides of the issue, citing David Barton, Glenn Beck, and Mark Levin as proponents of the idea. As Farris outlined the problem, (1) the federal government is going to destroy liberty; (2) the solution to stop this needs to be crafted to get to the root of the problem; and (3) we cannot let distrust of the people and the Founding Fathers lead us into weak solutions.

Farris ticked off the problems. The Supreme Court has ruled that the Congress can tax and spend virtually at will through the "general welfare clause," that there has not been a declared war by Congress since World War II, that treaties are dictating the domestic policies of the United States, rules are promulgated and placed in the Federal Register by unelected federal bureaucrats which operate like laws (although the Constitution states that only Congress may make law), and so on.

Farris' solution is to turn to Article V of the Constitution of the United States. The Constitution provides that two methods exist to propose amendments to the U.S. Constitution. One is the method that has been used all 27 times the Constitution has been amended, by proposal of two-thirds vote of each house of Congress. Ratification in the federal system comes from approval of three-fourths of the states, either through their state legislatures or special state conventions.

The other method to propose changes to the Constitution, which has never been used, is for the states to call for a national convention to propose changes to the Constitution. Any such changes proposed would then have to be approved by three-fourths of the states, as with any other proposed change to the Constitution.

Charlie Meadows, speaking in opposition, agreed that the problem of a run-away federal government, is very severe in the country. He said his difference with Farris and Standridge is not the problem, but their offered solution. Instead of a national convention, Meadows suggested that nullification is the better way to rein in the feds. According to Meadows, state legislatures just need to find the "courage" to find federal laws and presidential edicts that are outside of the Constitution as the unconstitutional acts that they are, and simply refuse to follow them in their state. Then, Meadows said, We can begin to "restore federalism," and put the federal tyranny "back in its cage."

Meadows' partner Bob Donohoo cautioned against the national convention idea by saying that we do not want to kill the patient while we are killing the disease. He drew a comparison between the shenanigans that occur at state Republican conventions over rules to what could be expected to happen at a national convention of the states.

Donohoo recounted some of the underhanded dealings of the Federalists (those who supported the Constitution) during the ratification debates over the Constitution in 1787-1789. For example, the governor of New Hampshire, a Constitution supporter, called the ratifying convention in the eastern part of the state, where the Federalists were more numerous. In Massachusetts, a rumor was spread that those who voted yes to the Constitution would be paid for their service, while those who voted no would not. The proposal passed narrowly in Massachusetts, but no delegates were ever paid as the rumor predicted. South Carolina's convention was grossly under-represented in the western part of the state, where most of the Anti-Federalists (those who opposed the Constitution) lived.

Donohoo recalled that in the late 70s and early 80s, thirty-two states (they needed thirty-four) had applied for a Convention of the States, to pass a balanced budget amendment. Members of Congress initiated forty-one bills to establish rules for the possible convention, addressing such issues as delegate qualifications, funding, and leaving the actions of the convention open to judicial review. Donohoo said that this rule-making authority of Congress could lead to a convention more favorable to the Big Government types who already run the country, and maybe even make things worse.

At this point, states began to rescind their calls for a Convention of the States, and the idea was shelved. But, Donohoo warned the rules are "on the shelf," ready and waiting should another convention be called. He predicted that Congress would insert itself deeply into the process, and would not stay passive.

The debate began to get increasingly tense as the combatants moved into cross-examination. Meadows asked the proponents if they had given up on the 9th and 10th amendments, which should be asserted through nullification (the idea that states refuse to enforce unconstitutional federal laws within their borders). Standridge responded that he was not opposed to nullification, while Farris said he did not believe in giving up any part of the Constitution, including the 9th and 10th amendments, but also including the Article Five convention, provided for in the Constitution.

The simplest way to nullify many federal laws, Farris argued, was to refuse to take federal money. But, Farris contended that nullification doesn't work in every case, such as in the case of the general welfare clause.

Meadows charged that many liberal groups have "lusted" for an Article Five Convention, as well, adding that his objection was "the risk" that we could lose our present Constitution. The structure to limit government is already there under our present Constitution, Meadows said. He said we have a "people problem," not a structural problem. Once we convene a convention, conservatives could not control it, Meadows warned.

Standridge then referred to the Nullification Crisis in the 1830s in South Carolina. When the tariff was raised to its highest level in American history, South Carolina "nullified" the law, refusing to collect the tariff in Charleston Harbor. President Andrew Jackson threatened war on South Carolina, but members in Congress, led by Henry Clay, the great compromiser, crafted a compromise lower tariff, and the crisis was averted. While nullification advocates contend that South Carolina's use of nullification forced the lowering of the tariff, Standridge took the position that it was South Carolina's call for a convention of the states that really forced the federal government to compromise. Standridge quoted James Madison, who, along with Thomas Jefferson, had originally proposed the idea of nullification in 1798 to block the Sedition Act (which violated the First Amendment's protections of free speech and free press). According to Standridge, the aging Madison said that he and Jefferson never wanted the nullification idea to be the work of just one state, but rather a "plurality of states" through a convention of states.

Following the debate, I talked to Standridge, who said South Carolina sent the following application to Congress: "Resolved, that is expedient that a Convention of the States be called as early as practicable to consider and determine such questions of disputed powers as have arisen between the States of this confederacy and the General Government."

Donohoo said that several members of Congress believe that a convention of states cannot be limited to a specific proposal, such as balancing the federal budget, or limiting the terms of members of the Supreme Court.

Farris argued that the states, not the Congress, controls the process, and that any convention of the states would give each state one vote, just like in the 1787 convention.

Meadows argued that Congress would simply ignore new amendments produced by a COS, unless the people held them to the changes. Standridge countered that Congress has followed amendments, at least for a time.

(Editorial comment—Here I would think Meadows has an historical example on his side. The First Amendment stated very clearly that Congress could make no law abridging the freedom of speech or of the press. That was in 1791. Yet, only seven years later, Congress enacted the Sedition Act, which proposed to abridge freedom of speech and of the press. It was this action of Congress that led Jefferson and Madison to suggest nullification, since Federalist judges applied the Sedition Act, despite the clear wording of the First Amendment).

Farris said that he believed nullification would work in certain areas, but it was not the "panacea" that nullification proponents think it is. Meadows cited Madison as saying we should never have another constitutional convention, especially in times of great national division and emotion. Farris countered that Madison was referring to going back into convention before the work of the 1787 group was ratified, arguing that Madison made this statement in 1788, before the Constitution was ratifed. Meadows said that, instead of a COS, there is no way out of our present difficulty, without "pain and difficulty."

Standridge called George Mason, a prominent Anti-Federalist from Virginia, who insisted on the placement of the national convention in Article Five of the Constitution, as a way to propose amendments to the Constitution.

Ironically, Michael Farris has been president of Patrick Henry College. Patrick Henry was among the most prominent of Anti-Federalists, who despite being elected to the Constitutional Convention, refused to attend, saying, "I smell a rat." The rat was, that despite the Confederation Congress's call for a convention "for the sole and express purpose of proposing amendments to the Articles of Confederation," the convention opted to scrap the Articles and structure a completely different Constitution, greatly enlarging the powers of the general government. Farris contended in the debate that it was not the Confederation Congress that called the 1787 Convention, but rather a number of states who initiated the call. This is a somewhat incomplete history, however, for had Congress refused to issue such a call, it is likely many states would have refused to attend. (Interestingly, Farris left out the above quotation Congress' call in a paper he authored, which was handed out to the audience prior to the debate).

Henry's fear was that those desiring to increase the power of the general government, the Federalists, were going to create a monster that would simply grow and eventually crush the states. It was Henry who exacted a promise from Federalist James Madison (who later drifted over to the Jeffersonian side) that a Bill of Rights would be added to the Constitution by the First Congress, designed to protect the states and its citizens from the power of the greatly-empowered central government.

Alas, while we can certainly be grateful to the Anti-Federalists for the Bill of Rights, their concerns over an increasingly tyrannical federal government have come true. Evidence for this is in the very fact that this debate was held, to discuss some way to rein in the national government.

Indeed, Patrick Henry smelled a rat.

The Congressional Research Service published a report in 2011, by Thomas Neale. The report was to provide Congress with some guidance, should enough states actually call for a COS. According to the Report, conservative organizations have promoted the idea of a COS, but there also left-wing groups like MoveOn.Org and Occupy Wall Street that have mentioned the idea, as well.

In the Report, Harvard Professor Lawrence Lessig contended, "An Article V Convention would be equally attractive to the political left and right, because assuming that it would be an open convention, the delegates could consider, and conceivably propose, amendments from the agendas of both ends of the political spectrum."

The Report examined the role of Congress in any COS, specifically mentioning that Congress has place "time limits" on ratification of seven years since the 18th Amendment (Prohibition) was sent to the states in 1917, and Congress could be expected to continue to limit the work of a COS to seven years for ratification.

"Congress has traditionally laid claim to broad responsibilities in connection with a convention," the Report said, citing that has been their role to receive, judge and record state applications, to develop procedures to summon a convention, to set a time limit on their deliberations, to determine the number of delegates and the selection process for delegates, to set an internal convention procedure (including a formula for allocation of votes among the states), and to arrange a formal transmission of the proposed amendments to the states.

The Report cites those who argue that conventions limited in subject would be "constitutionally impermissible for the reason that no language is found in Article V that authorizes them."

Another issue examined in the Report was whether a time limit could be placed on proposed amendments to obtain ratification. A Supreme Court decision, Dillon v. Gloss, in 1921, upheld a deadline as "reasonably applied." However, the 27th Amendment was originally proposed by James Madison, and it was not ratified until 1992, over 200 years later. The federal courts upheld the ratification of this amendment relating to congressional compensation, because no deadline was placed on the 27th Amendment, when it was proposed as part of what is now known as the Bill of Rights.