Phyllis Schlafly was the general of the army in the battle against the Equal Rights Amendment. I was a line officer called into duty when, in 1978, Congress purported to change the deadline for the ratification of that amendment.
On behalf of three Washington state legislators, I filed the first legal challenge to the constitutionality of the misuse of the Article V process by Congress. My lawsuit was later consolidated with a similar case filed by state legislators from Arizona and Idaho.
Phyllis and I traveled together throughout Washington state to urge support for my lawsuit. She helped raise the funds that allowed us to battle both the federal government and the National Organization for Women.
We won that case at the federal district court level. The Supreme Court granted review but put the case on ice until the second deadline expired. When 38 states failed to ratify by the date of the “extended” deadline, the Supreme Court ruled the whole matter to be moot.
I tell this story to illustrate two points in response to Phyllis Schlafly’s latest argument against a convention of states. First, knowledgeable conservatives can legitimately disagree on this issue. Phyllis Schlafly and I have been friends for well over 30 years and have worked together on countless causes. She is a true blue conservative, and I am a true blue conservative. We both have substantial experience in Article V issues – she as a political leader and advocate and I as a constitutional litigator.
I am not the only true conservative to disagree with Phyllis on this. Talk-show host Mark Levin and Sen. Tom Coburn are among the many conservative leaders who, like me, have begun to call for a convention of the states to stop Washington, D.C., from abusing its power.
When longtime conservatives disagree, it is time to listen to the merits of their arguments rather than making snap judgments when one side proclaims that no conservative can disagree.
Recounting our work together on the ERA litigation leads to my second point. Phyllis argues, “Article V doesn’t give any power to the courts to correct what does or does not happen.” Phyllis knows better. She was present in the federal courtroom in Boise, Idaho, when I (along with other members of our litigation team) argued that Congress had misused its Article V power. We won in court. And Phyllis and I both celebrated that victory. The courts can and have stopped the abuse of the power granted by Article V.
But I disagree with Phyllis on an even more fundamental issue. She argues that the Constitution was illegally adopted as the result of a runaway convention. This argument is an old one, but the complete history shows it to be an unjustified slander against the Constitution itself.
The anti-federalists invented this calumny against the Constitution, and the public schools have repeated it for so many generations that most Americans accept it as true. I am baffled by any friend of the Constitution who argues that it was illegally adopted. Why should an illegal document be defended at all?
Proponents of the “illegal Constitution theory” like to point to the phrase that called the Convention “for the sole and express purpose of revising the Articles of Confederation.” But the call for the Convention issued by Congress didn’t end with that phrase. The very same sentence also said that the purpose of the Convention was to “render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” The call of the Convention used the terms “Articles of Confederation” and “federal constitution” interchangeably in the same sentence.
The Convention wasn’t limited to proposing one amendment or a thousand. It wasn’t required to send a series of amendments back for individual consideration. It was perfectly within the call of the Convention to put together a new package to “render the federal Constitution adequate” to save the nation. And that is what the participants did.
In order to negate the slander against the Constitution, it is incredibly important to understand the next two steps in the process of its adoption and to compare them with the requirements for amendments to the Articles of Confederation. Any change to the Articles required the approval of Congress and the ratification by all 13 state legislatures.
The Constitutional Convention proposed two important changes in this process. First, rather than having the Constitution approved by state legislatures, they recommended convening special ratification conventions in each state. Second, they recommended that the number of states required to approve the Constitution be changed from 13 to nine.
It is the change in the amendment process that receives the most attention from those who claim that the Constitution was illegally adopted.
But contrary to what you were taught in the public schools, that change in process did not happen without proper approval. Congress first approved the new process and sent this recommendation to the state legislatures. All 13 state legislatures approved the new process by calling for ratification conventions in their own states.