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Response to the Rogers County GOP Resolution

Michael Farris, JD, LLM

If the Oklahoma GOP adopts the resolution proffered by the Rogers County GOP, the headline in the Daily Oklahoman will read: “OK GOP Claims the US Constitution Was Illegally Adopted.”

The opening sentence will read: “In an effort to undo the legacy of Senator Tom Coburn, the Oklahoma Republican Party adopted a resolution claiming that the United States Constitution was illegally adopted by a runaway convention in 1787.”

Both the headline and the opening sentence would be a fair and accurate description of the resolution, which contains gross historical inaccuracies.

The question that is on the table is this: Does the Republican Party of Oklahoma want to go on record supporting a resolution that alleges that the Constitution of the United States was illegally adopted?

An article I wrote for the Harvard Journal of Law and Public Policy (published by Harvard Law School’s chapter of the Federalist Society and widely considered the top conservative law review in the country) definitively proves that the Constitution was lawfully adopted. You can read it here.

Despite the fact that this accurate information defending the honor of our Founding Fathers is readily available, the Rogers County resolution contains the following false claims and insinuations.

Claim 1. “James Madison justified writing and [sic[ entirely new constitution….by referring to the Declaration of Independence.”

This refers to a long-standing argument—usually advanced by leftists—that the Convention was only supposed to amend the Articles of Confederation, but instead the delegates proposed a whole new Constitution.

This claim is based on the premise that the Articles of Confederation Congress called the convention and gave it the instructions to only amend the Articles. This is simply false.

The Articles of Confederation gave no authority to the Congress to call a convention, and anyone with even a little knowledge of the history of the Articles knows that the document gave Congress no implied powers.

In reality, the states called the Convention. Virginia went first. It gave its delegates this instruction and goal: “Render the federal constitution adequate for the exigencies of the Union.” The vast majority of states followed suit. All the details are in my article.

It is true that Madison referred to the Declaration as a moral justification for the actions of the Constitutional Convention in Federalist 40, but this was added to give additional weight to his prior legal argument that the delegates’ commissions from the state legislatures authorized their action.

In short, the delegates followed their instructions, which were given by the State legislatures.

Claim 2. The delegates improperly adopted “a new means of ratification.” It is true that a new means of ratification was adopted, but it is false to say that it was not properly approved.

The resolutions from many states included a proposed means for approving the work of the convention. Some states were silent. But every state that discussed ratification said that the recommendations of the Convention should be approved by Congress and then ratified by all thirteen states.

This rule parallelled the rule in the Articles of Confederation but technically comes from a different source of authority—the state resolutions.

What few people know is that the Constitutional Convention actually produced two documents that it sent out for approval. One was the Constitution. The other was a proposal for a new method of ratification by nine state conventions rather than 13 state legislatures. Importantly, this resolution about the new ratification process was sent for approval using the old process. It was sent to the Confederation Congress. Congress did not vote on the Constitution itself but unanimously approved the new process. Congress did not send the Constitution to the state conventions. Instead, it sent everything to the state legislatures, asking them to consider approving the new process by calling conventions.

All thirteen state legislatures approved the new process by calling conventions. Yes, the ratification process was different than the one initially specified, but it was first approved by using the old process.

Any claim that this history proves that any amendment coming out of an Article V convention could be subjected to a new ratification process is simply false. If a new process was proposed by two-thirds of Congress or by a convention called by two-thirds of the states, it would have to be ratified by 38 state legislatures before it could be used. The Rogers County resolution is simply wrong about all this.

Claim 3. States cannot restrain their delegates. This is false historically and as a matter of court precedent. The New York legislature instructed its delegates to the 1787 convention that all three had to be present to cast New York’s vote. Two delegates quit in the middle of the convention. New York never voted again. Hamilton stayed and debated but never voted.

Moreover, the Supreme Court recently ruled that states can control their delegates to the electoral college. They can command them to vote in line with the winner of the state’s popular vote. Chiafalo v. Washington, 591 U.S. 578 (2020). The parallel is unmistakable, and there are no precedents to the contrary.

Claim 4. Congress can use its implied power to control the convention. This inaccurate claim is premised on the idea that the Necessary and Proper Clause applies to the power of Congress under Article V. This is simply not true.

In a case that I litigated when Congress was trying to revive the ERA, a federal court ruled that Congress cannot use its Article I powers (including its power under the Necessary and Proper Clause) in the context of Article V. State of Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1982). Although the Supreme Court declared the case moot when the second deadline expired, more recent ERA decisions have reaffirmed the holdings of the Freeman case.

What the John Birch Society fails to tell people is that the first and second presidents of the JBS actively promoted an Article V convention when they were advocating for a proposed constitutional amendment called the Liberty Amendment. Then the JBS embraced Article V. Now people unfaithful to the founders of the JBS have taken over.

The JBS of today believes that its own founders were wrong and that the founders of our country illegally manipulated their authority to adopt our Constitution.

The Republican Party of Oklahoma should not embrace disproven allegations that do nothing more than defame the Constitution of the United States and its Framers. Republicans should love the Constitution. And we should use it properly—including Article V, which was drafted to enable the states to stop runaway federal power.

Dr. Tom Coburn was right. These dissenters stop at nothing to undermine his work, including shamefully undermining the legitimacy of the US Constitution.

Michael Farris is a constitutional lawyer admitted to practice in 1976. He has twice argued and won First Amendment cases in the United States Supreme Court. He founded the Home School Legal Defense Association, Patrick Henry College, and the Convention of States Project. He was President and CEO of Alliance Defending Freedom from 2017 to 2022. He is currently General Counsel for National Religious Broadcasters. Farris also won the GOP nomination for Lieutenant Governor of Virginia in 1993.

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Created:	2025-08-28 02:26 GMT
Updated:	2025-09-03 07:00 GMT
Published:	2025-08-28 02:34 GMT
Converted:	2025-11-11 12:42 GMT
Change Author:	Karen Schuster
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