Page Six F

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Page 6 F--Continuing the Discussion of JBS/Eagle Forum

On April 9, 2010 the Phyllis Schlafly, founder of Eagle Forum, published an article on the Eagle Forum website entitled "Good Advice Against a Con Con." (Click images left to read column). In the article Schlafly quoted from a letter written by James Madison to George Lee Turberville on 2 November 1788. The link in the Eagle Forum column leads to a site entitled "Familytales.org." Schlafly alleged a quote from the letter taken out of context proved James Madison was "warning on November 2, 1788 against calling another general constitutional convention" and this warning equally applied to an Article V Convention.

Before discussing Schlafly's allegation further it is important to recall JBS/Eagle Forum equate the Federal Convention of 1787 convened under authority of the Articles of Confederation (referred to by Schlafly as a "constitutional convention" or "con con") and an Article V Convention convened under authority of the Constitution as interchangeable. Schlafly states in her column, "Madison's prophetic warnings against a general convention to amend our Constitution...are even more compelling today." [Emphasis added]. To JBS/Eagle Forum the two conventions are identical despite language of the Constitution limiting an Article V Convention to only proposal of amendments to the present the Constitution.

Under the terms of the Constitution an Article V Convention cannot be a "general constitutional convention." The purpose of the convention is exactly specified, "a convention for proposing amendments" to the present Constitution. As to Madison's "warning," while Schlafly referred to Madison as the "Father of the U.S. Constitution, she ignored the historic fact James Madison wrote the language of Article V at the Federal Convention of 1787 (See Page 11). Further Madison wholeheartedly supported an Article V Convention as to affect and effect in the pivotal discussion about an Article V Convention in Congress on May 5, 1789 (See Page 11 C).

Prefacing her quote Schlafly wrote, "Speaking to us from across the years, the Father of the U.S. Constitution, James Madison wrote this warning on November 2, 1788 against calling another general constitutional convention. [Schlafly then quoted the Madison letter]: "If a General Convention were to take place for the avowed and sole purpose of revising the Constitution, it would naturally consider itself as having a greater latitude than the Congress appointed to administer and support as well as to amend the system; it would consequently give greater agitation to the public mind; and election into it would be courted by the most violent partisans on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already too much heated men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric.

Under all these circumstances it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a Second, meeting in the present temper of America, and under all the disadvantages I have mentioned."

Schlafly then concluded, "Madison's prophetic warnings against a general convention to amend our Constitution (now colloquially called a Con Con) are now even more compelling today."

This "prophetic warning" is frequently cited by JBS/Eagle Forum as proof for not holding an Article V Convention despite the fact the requirement mandating a convention under the Constitution has been satisfied. (See 2010 JBS/Eagle Forum article). As the "warning" is contained in easily obtained historic record, a simple examination reveals whether Schlafly was accurate as to James Madison's "warning" against holding an Article V Convention today or did she misrepresent Madison. Given Madison's history of both writing Article V and his unabashed public support for the convention clause in 1789 the question is: did Madison support an Article V Convention during the Federal Convention of 1787 only to switch his position to "warning" against an Article V Convention in late 1788 as Schlafly alleges only to switch again to supporting the convention clause seven months later in May, 1789?

To answer this question requires examination of the full text of the letters (rather than taking a quote out of context as Schlafly did) from George Lee Tuberville to Madison leading up to Madison's response on 2 November 1788 as well as any subsequent letters in which Tuberville responded to Madison's comments of 2 November 1788. Copies of these letters may be enlarged by clicking the on appropriate image. [Tuberville letter of 20 October 1788 is shown at left. Tuberville letter 24 October 1788 (panels 1-2); Tuberville letter 27[29] October 1788 (panels 3-4). Madison letter 2 November 1788 (panels 5-6); Tuberville letter of 13 November 1788, (panels 7-8). Tuberville letter 16 November 1788 letter (panels 9-10). Second Madison letter referred to 16 November 1788 Tuberville letter has never been found.

Schlafly's quote of Madison is accurate. However the question is not whether Schlafly quoted Madison accurately but whether she interpreted Madison's letter accurately. Thus, was the substance of Madison's letter a "warning" against an Article V Convention described in Article V of the Constitution or was he "warning" against some other convention?

The historic facts are these: As of November, 1788, eleven states had ratified the Constitution. This was sufficient under the terms of the new Constitution to commence a new government (See Page 12, Table14). However politically the nation was in a state of flux, caught between the establishment of a new government and termination of the old. Many did not support the new Constitution (including Governor George Clinton presiding officer at the New York ratification convention (later Vice President under presidents Jefferson and Madison) (See Page 12, Table 14, New York Ratification, panels 9-10, 2nd row, panels 1-3, 3rd row). One tactic employed to thwart the establishment of the Constitution was to demand "amendments" to the new Constitution (proposed by a second convention held prior to the new Constitution taking effect) while the nation was still technically operating under the Articles of Confederation.

Ultimately these demands for amendment to the Constitution were satisfied by Congress when it proposed what came to be known as the Bill of Rights after the new Constitution became the law of the land. During late 1788 however despite the fact Virginia had ratified the new Constitution on June 26, 1788, (See Document: Page 12, Table 14, Virginia Ratification) fierce political battles still raged in Virginia regarding the national government. Like Clinton many in Virginia believed amendments were needed to the new Constitution before the Constitution took effect. Madison was in New York during the time of these letters. It required six days for mail to travel between Virginia and New York. When Madison responded to George Lee Tuberville on 2 November 1788 he was responding to the two Tuberville letters posted 20, 24 October 1788.

Madison did not change his position regarding an Article V Convention on November 2, 1788. The letters, when read in full, make it clear while an Article V Convention was mentioned the "convention" being discussed in relation to the quote used by Schalfly was not the Article V Convention clause contained in the Constitution. Rather the full text of the letters prove irrefutably the subject of the discussion was the proposal by the state of New York for a second "General Convention" to propose amendments to the new Constitution before the new Constitution took legal effect. (See: Page 12, Table 14, New York Ratification).

Tuberville stated this emphatically in his 20 October 1788 letter saying, "A proposition is talked of even by the staunchest friends to the New Constitution, to close With N York & propose another convention to amend--your opinion on this subject wou'd assist me Much, especially if you think it improper--I therefore write for this information which I shou'd be gratefully obliged for." Tuberville again referred to the New York proposal in his 24 October 1788 letter saying, "Much talk of closing with New York in her proposal for a new convention. Primâ facie--I see no impropriety in it." Tuberville is even more emphatic in his 27[29] October 1788 letter which quotes resolutions before the Virginia state legislature.

The actual language of these resolutions contained in Tuberville's 27[29] October 1788 letter present a significant fact. Unlike the New York resolution which requested a convention be held before the Constitution took effect, the Virginia resolution called for an "Application be made to the Congress of the United states [sic]--so soon as they shall Assemble under the new Constitution to call a Convention for proposing Amendments to the same according to the mode therein described. [Emphasis added]. The resolution was defeated. However a subsequent resolution/application ultimately was passed by the state legislature of Virginia. This application became the basis for the May 5, 1789 discussion by Madison and other members of Congress on the terms and conditions of an Article V Convention.

The resolution referred by Tuberville in his letter therefore was a resolution/application requesting a convention to be convened under the terms of the new Constitution using the convention clause described in Article V. In short the state of Virginia was considering a resolution in favor of an Article V Convention. It also obviously understood the Article V Convention was not the "General Convention" sought by the state of New York. Indeed the text of Tuberville letter of 27[29] October 1788 letter clearly show the state legislature of Virginia understood the difference between Clinton's proposed second convention held under the Articles of Confederation prior to the Constitution taking effect and an Article V Convention application to take effect after the Constitution took affect. As the state legislature eventually applied for an Article V Convention obviously it (and the other 48 states to follow) believed the convention specified in Article V not to be a "danger" as Schlafly states in her April 9, 2010 column.

As noted by Madison in his November letter he was referring to the question poised by Tuberville in his letters of 20, 24 October 1788: whether a second convention (to be convened before the Constitution took effect) should be held. The text of Madison's letter (not quoted by Schlafly) proves it was this subject Madison was discussing and not an Article V Convention. Madison summed the basis for and purpose of his response in the third sentence of his letter (ignored by Schlafly) saying, "You wish to know my sentiments on the project of another general Convention as suggested by New York."

As the Madison is clear as to his meaning and intent in his letter it is obvious Schlafly deliberately ignored whatever text disproved her contrived "warning" about an Article V Convention by Madison. Madison listed four points in his letter discussing the question of a second convention being held prior to the Constitution taking effect. Schlafly, quoting out of context, ignored three of the points and quoting only one point made by Madison in his letter and never mentioning that Madison's reference to a "General Convention" did not refer to an Article V Convention but a different convention entirely. Madison's points in his letter were:

1. He agreed amendments to the new Constitution were needed and "wished it [the Constitution] to have received before it issued from the place [the Federal Convention of 1787] in which it was formed."
2. Madison raised the question of "which of the two modes provided [in the Constitution, by Congress or convention] be most eligible for the discussion and adoption of them [proposed amendments]."
3. Madison then stated support for Congress rather than a convention proposing the needed amendments. "The objections agst. a Convention which give a preference to the other mode in my judgment are the following." Madison listed the reasons for his preference in using Congress rather than a convention to propose the needed amendments to the new Constitution:

It would "add to the difference among the States "on the merits, another and an unnecessary difference concerning the mode." Madison foresaw a "number of States who will be so averse and apprehensive as to the mode, that they will reject the merits rather than agree to the mode." He concluded, "A convention therefore does not appear to be the most convenient or probable channel for getting to the object."
Madison discussed difficulties of calling the convention noting "A convention cannot be called without the unanimous consent of the parties who are to be bound by it, if first principles [Articles of Confederation] are to be recurred to; or without the previous application of 2/3 of the State legislatures, if the forms of the Constitution are to be pursued." Madison then stated, "The difficulties in either of these cases must evidently be much greater than will attend the origination of amendments in Congress, which may be done at the instance of a single State Legislature, or even without a single instruction on the subject."
Madison's third point was quoted by Schlafly. However it must be remembered Madison already stated the purpose of his letter was to discuss "the project of another general Convention as suggested by New York." Previously (as ignored by Schlafly) Madison had been discussing the mode of amendment proposal by Congress versus by convention as described in Article V of the Constitution. Now Madison discussed the actual subject of the letter: "A General Convention [proposed by New York] ... for the avowed and sole purpose of revising the Constitution." Schlafly correctly states Madison opposed such a convention but failed to point out in her article Madison described two distinct conventions in his letter--the Article V Convention described in the Constitution (points 1 and 2) and the "General Convention" not described in either the Articles of Confederation or the Constitution (point 3).
Finally Madison made a fourth point (also ignored by Schlafly) which clearly proves Madison was discussing events of 1788 and not warning against an Article V Convention and its purported "dangers" in the future as Schlafly alleges. Madison stated, "It is not unworthy of consideration that the prospect of a second Convention would be viewed by all Europe as a dark and threatening Cloud having over the Constitution just established [emphasis added]. Madison then discusses the effect of the new Constitution on Europe, particularly France which, a few years later, would have its own revolution partly based on the experience in America ["its influence is already secretly but powerfully working in favor of liberty in France..."]. Madison then addresses a recent loan from Holland "that alone saved the U.S. from Bankruptcy...and that loan was obtained from a belief that the Constitution then depending wd. be certainly speedily, quietly, and finally established, & by that means put America into a permanent capacity to discharge with honor & punctuality all her engagements."

In sum all references in Madison's 2 November 1788 letter describe present day events of 1788. There are no references to speculative events in the future. Madison certainly does not "warn" against an Article V Convention except for political purposes of the day he believed the most expedient course to propose amendments to the new Constitution was by means of Congress rather than by convention. He carefully described the reasons for this belief in his letter.

Schlafly carefully avoided any reference to Madison's letter which reflected this fact or the fact Madison discussed two distinct conventions--an Article V Convention and a "General Convention." The two conventions were for two distinct purposes--the first to propose amendments to the Constitution once it took effect; the second to propose amendments to the new constitution prior to it taking effect.

Schlafly avoided any reference to the fact Madison did not favor using an Article V Convention for current political reasons as he believed the congressional mode of amendment proposal to be more "convenient." At no time did Madison "warn" against using an Article V Convention in the future. Thus Madison did not switch his position on an Article V Convention. The public record proves Phyllis Schlafly deliberately misrepresented Madison by taking his words out of context from the letter he wrote on 2 November 1788.

The Fotheringham Exchange

On November 23, 2016, Don Fotheringham published an article entitled "Article V is Deliberately Vague" on the News With Views website. According to his biography at the end of his article Mr. Fotheringham was in charge of the anti-convention campaign by JBS beginning in 1983 and remained in charge of the campaign until his retirement from JBS in 2012. Bill Walker, co-founder of FOAVC sent an email in response to the column written by Mr. Fotheringham. What followed was an exchange of emails in which Mr. Fotheringham made several revelations regarding the JBS anti-convention campaign which he helped to create.

Most particular is the revelation the question of whether so-called "rescissions" having any legal affect was never considered by JBS nor the question of legality was discussed with any member of a state legislature during the 40 year JBS campaign. FOAVC believes the revelations and exchange by Mr. Fotheringham to be significant. The original article by Mr. Fotheringham column and subsequent email exchange is published below in sequential order. Images may be clicked to enlarge.

JBS/Eagle Forum has spent over 40 years campaigning against an Article V Convention. FOAVC has presented the primary arguments used by these organizations as the basis for their opposition to Congress calling an Article V Convention as required by the United States Constitution. The public record of state applications is irrefutable: the states have applied in sufficient numbers to cause Congress to call several conventions.

The opposition of JBS/Eagle Forum is clearly intended to enable Congress outright disobey the Constitution despite statements by JBS/Eagle Forum should obey the Constitution. Veto of the Constitution by Congress is a serious alteration of the structure of our form of government an is an act of insurrection. Arguments for such a massive undertaking must be sound and true to support such a decisive change in government.

FOAVC has compared each JBS/Eagle Forum argument in the light of related public record. In each instance, the public record proved the argument false. This public record is easily obtainable. It is impossible to believe JBS/Eagle Forum either was unaware of the public record or was unable to obtain it for their use. The only conclusion is the public record was deliberately ignored by JBS/Eagle Forum or deliberately falsified to advance their political agenda.

The public record proves Congress is required to call an Article V Convention. Congress has not done so primarily because of the false statements by JBS/Eagle Forum. Such continued action is not only foolhardy but dangerous. A belief by the Government it can veto the Constitution will wreck catastrophic havoc in this nation. The JBS/Eagle Forum arguments are neither sound nor true. Therefore JBS/Eagle Forum arguments for why an Article V Convention should not be called must be disregarded.