Cuccinelli’s Thoughts on Article V

CuccinelliVC Note:  Shortly after Delegate Lingamfelter’s email, former Virginia Attorney General Ken Cuccinelli sent out his thoughts on an Article V Convention of States.  Interestingly, this issue seems to be creating a significant wedge in the conservative movement in Virginia.



Dear Friend and Fellow Virginian,

One of the most unique and important discussions among constitutional conservatives is taking place right now in Virginia’s General Assembly.  It is the debate about whether the states (including Virginia) should exercise their rights to call an Article V Convention of States for the purpose of proposing amendments to the U.S. Constitution to limit the power of the federal government.

While I have good friends whom I respect on the other side of this debate, I support the effort of the states to call such a convention and I wanted to share my reasons with you.

I would note that there is a body that sits for nine months every year, “defining” our constitution, and sadly it seems to regularly undermine the original meaning of that sacred document… always seeming to grow the power of the central, federal government.  We call this body The Supreme Court of the United States.

We can continue to idly watch the Supreme Court and the federal government eat away at the constitutional foundation of this country, or the states that founded it can make an effort to limit the runaway growth in the power of the federal government.  Frankly, I don’t see – nor has anyone suggested to me – a viable alternative to the Convention of States.

The usual argument: ‘we just have to elect people who will rein in the federal government’ has not worked.  I would note that the Founding Fathers expected to be disappointed, and they tried to design a governmental system with checks and balances to curb the natural excesses of mankind, including a way to rein in the federal government when it got out of control.

Virginia’s General Assembly will vote to take the first step to rein in our runaway federal government in the next few days.  Your support is urgently needed!  The vote looks like it’s going to be very close.

Our Founding Fathers gave the states a method of proposing amendments to our Constitution to rein in the power and jurisdiction of the federal government.  Proud Virginian George Mason insisted that one day the federal government would outgrow its bounds, and when that day came, the states would need to have the ability to amend the Constitution to limit the power of the federal government.  An Article V Convention of States is the specific recourse he and our Founders put in the Constitution for that purpose.

I’d like to ask you to stand with George Mason and our Founding Fathers and tell your Virginia legislators to support HJ 497, HJ 499, and SJ 269!

Here are 3 Simple Facts that I Think Opponents are Getting Wrong:

1. The States Control the Convention Process

A Convention of States was put in the Constitution for the express purpose of giving the states a way of limiting the federal government.  Under Article V it takes 34 states to start the convention process.  Then the states appoint the delegates to the convention.

No matter what Congress would like to do to influence or attempt to ‘control’ the convention, they have no authority to do so.  The convention can ignore anything Congress ‘says’ about the convention.

Finally on this point, and in my mind critically, 38 states have to ratify any proposals coming out of the convention before they become part of the Constitution – this is our ultimate ‘backstop.’  Put another way, at a time when Republicans control more state legislative chambers than ever before in my lifetime, only 13 legislative bodies (e.g., only the House of Delegates, even without the Senate, on behalf of Virginia) may block ANY proposed amendment.  Blocking votes are the most important, and there are more conservative states than liberal states; additionally, Republicans control approximately double the number of state legislative chambers across the country as Democrats right now.  That’s as good a backstop as we’re going to get – and don’t forget, the Supreme Court is out there whittling away our constitution and increasing the power of the federal government even as we debate this question.

The process is state-driven from beginning to end, and has numerous checks and balances to ensure its safety.  Our Founders knew what they were doing.

2. Virginia is focusing on Amendments that Limit the Power of the Federal Government.

HJR 497 only allows a convention to consider amendments that will limit the power of the federal government.  HJR 499 only allows a convention to consider a balanced budget amendment.  This can be reflected in the qualifications of Virginia’s delegates. Your rights under the First, Second, or any other Amendment are not ‘up for grabs’ (compare that to the Supreme Court)!  The only people who need to fear a convention are the politicians and bureaucrats in Washington, D.C.

Remember, Virginia’s General Assembly will decide how delegates to a convention are selected, and while there are no absolute guarantees here, Virginia does have significant control of its delegates and a solid backstop in place.

3. Who does and who does NOT support a Convention of States:

Opponents often accuse us of being supported by the likes of George Soros and  This is not the case.  Have you ever heard any of them back it (I mean quotes from THEM, not someone who opposes it telling you ‘George Soros wants it’)?  Go look at their websites.  You will not find such support anywhere.

I’ve even heard things like ‘the NRA opposes it.’  If so, my understanding is that their lobbyist in Richmond is unaware of that fact… draw your own conclusions.

A wide range of conservatives support this effort, including people like Governor Bobby Jindal, Prof. Randy Barnett – the leading academic in the opposition to Obamacare, Mike Farris, Mark Levin, Glenn Beck, David Barton, Colonel Allen West, Senator Ron Johnson, and Retired Senator Tom Coburn, just to name a few.  Countless other conservative leaders also support this effort.

I should note that I have never seen an issue that sees so many good conservatives on both sides.  But I want to ask you to stand with our Founders and the countless conservatives who have joined this cause.  Please contact your state legislators in the Virginia House and Senate and tell them to vote in favor of HJ 497, HJ 499, and SJ 269.

You can find out who your state legislators are here:

For liberty,

Ken Cuccinelli, II


Lingamfelter on the Convention of States

Delegate Lingamfelter in Harrisonburg, April 2013
Delegate Lingamfelter in Harrisonburg, April 2013

VC Note:  Last night, Delegate Scott Lingamfelter, patron of HJ 497, (calling for a convention of states under Article V of the Constitution) sent out the following email in response to earlier messages from Delegate Bob Marshall and Senator Dick Black.







Dear Friends,

I am sorry for the length of this, but it’s really important.

For those of you who are in support of an Article V Convention of the States, please read this important rebuttal by Michael Farris to Senator Dick Black’s email sent yesterday that is, I am sad to say, utterly untrue.

First, many of you know that I am the Chief Patron of this effort (HJ497) in the House of Delegates.

Those who are opposed to the states coming together to rein in Federal power have panicked, because we are on the verge of victory.  They are putting out blatant distortions to make people and their Delegates fearful.  Consider this:the following conservatives SUPPORT a convention of the states:

Ken Cuccinelli, Mat Staver, Governor Bobby Jindal, Randy Barnett, Sarah Palin, Mark Levin, Glenn Beck, David Barton, Colonel Allen West, Senator Ron Johnson, Retired Senator Tom Coburn, and countless other conservative leaders.  And we are joined by very brave Delegates in the House including Delegates Anderson, Morris, Ware, Berg, Bloxom, Cole, Cox, Edmunds, Fowler, Garrett, Greason, Head, Jones, LaRock, Massie, O’Bannon, Peace, Poindexter, Webert and Wilt.  They have the courage to take a stand and I hope you will also.  Others are signing on too as they come to realize that we must act now.

Do you think these conservative leaders are trying to scare you?  No, they are conservative leaders and they have the courage to stand up to Federal overreach and not cower to the fear tactics of the John Birch Society.

Second, there is an utter lie being circulated that the NRA opposes the Convention of the States.  The NRA has NOT taken a position and in fact their chief Counsel supports our effort.  So let’s be straight. Lies to scare folks won’t work.  Please call your delegate and senator this weekend, and tell them that this week when this comes up for a vote, to please act boldly and support HJ 497 and SJ 269, calling for a Convention of the States.


ANSWERING DICK BLACK: Michael Farris, J.D., LL.M., Constitutional Lawyer & Chancellor of Patrick Henry College

At the 1787 Constitutional Convention in Philadelphia, George Mason of Virginia insisted that there would come a day when the federal government would abuse the authority it was given under the Constitution. Mason therefore insisted that the States be given the power to propose amendments to the Constitution to rein in the Federal Government. Mason said that Congress would never propose amendments to restrict federal power. And he has been proven right.

Dick Black’s “Urgent” Appeal is false, deceptive, and demeaning to all Virginians. Here’s why:




Black claims that “Virginia will vote to change the Constitution of the United States in a few days.” This is a far cry from the reality both as to the timing and as to the scope of the Convention. Virginia is set to vote on whether to begin the process of considering the proposal of specific amendments to the Constitution. We are years away from making any amendments (34 states must first approve the call, the convention must be held, and 38 states must ratify any proposals coming out of the convention before any change is made to the Constitution.

Black claims that Virginia could be the “tipping point” to get to 34 states. This is based on the idea that many states have already called for a convention, and that adding Virginia to the list would bring us to the needed number.

This claim is demonstrably false and nothing better than a blatant attempt to incite panic.

The two specific resolutions in front of the Virginia General Assembly are for an Article V Convention to limit federal power and jurisdiction (HJ 497) and an Article V Convention to propose a Balanced Budget Amendment (HJ 499).

Three states have passed the first application, and 24 states have passed the second. Virginia would not be the 34th state for either measure.

Black’s assertion that Virginia could be the tipping point is based on the clearly erroneous assumption that Article V applications can never be rescinded.

Every serious Article V legal scholar understands that rescissions are valid. I personally litigated a case regarding rescissions of ratifications of proposed constitutional amendments under Article V. The federal court holding is that rescissions of ratifications are indeed binding. Idaho v. Freeman, 529 F.Supp. 1107 (D.Idaho 1981).

The simple truth is that we are years away from voting on actual amendments to the Constitution. If these applications pass, Virginia will be the 4th state to call for a Convention of States to restrict federal power and the 25th state to call for a Balanced Budget Amendment. These applications can only trigger a convention where amendments will be debated, drafted, and then sent on to the states for ratification. They will “change” the Constitution only if ratified by 38 states.




Black claims that George Soros, Code Pink,, New Progressive Alliance and 100 other liberal groups “are pushing for this.”

None of these entities have endorsed or “pushed for” the Convention of States (HJ 497) or a Balanced Budget Amendment (HJ 499) in Virginia or any other state.

Not one of these entities even mentions Article V on their website (,,,, and Not once. mentions Article V of the Wisconsin Constitution and Article V of the Geneva Convention. The Occupy Wall Street website includes reader comments discussing Article V. But not once is there any mention of Article V of the U.S. Constitution by these organizations. Pure silence.

Dick Black’s source for this claim is a website operated by a group that is seeking an Article V convention for a wholly different purpose. This group seeks to repeal the Citizens United decision by the Supreme Court. The organizations listed are endorsing the repeal of Citizens United. No organization with that movement has “pushed for” or endorsed either the Convention of States (HJ 497) or a Balanced Budget Amendment (HJ 499) in Virginia or any other state.

Black’s claim that these liberal organizations are “pushing for this”-referring to the bills slated to be voted on by the Virginia General Assembly-is a blatant falsehood.




Dick Black says that there is no law which states how delegates to the Convention are chosen. There was no such law in place in 1787 when Virginia chose its delegates to the Constitutional Convention. The legislature had the inherent power to appoint delegates-who represent Virginia-and it did so. The Virginia General Assembly has that same power today, and it comes from Virginia’s sovereign power and Article V of the Constitution.




Black claims (citing a video by the John Birch Society) that a convention cannot be limited to the subjects identified in the state applications, but will necessarily throw open the entire constitution. In fact they claim that our original Constitution is invalid because it, too, was adopted by a “runaway convention.”

This argument has been thoroughly discredited.

Dick Black needs to explain why he is listening to and promoting these dangerous people, who have admitted that they will pursue secession if their “plans” for nullification are unsuccessful.




You can see from the text of Article V itself that Congress only has two duties with regard to the Convention mechanism. It aggregates the applications and “calls” the Convention once 34 states apply for a Convention to propose a certain type of amendments. Then it chooses between two specified methods of ratification for any amendment proposals that come out of the Convention-each of which requires 38 states to ratify.

The term “call” used in Article V is a legal term of art with regard to the Convention process. To “call” a Convention is not to control it, determine its rules or decide who represents the parties! Rather, to “call” a Convention is to announce the date, time and location for it to facilitate its occurrence. Virginia “called” the Constitutional Convention in 1787. But did it unilaterally determine the rules or select the delegates from other states? Of course not!

Some of the arguments made by Dick Black are matters of opinion, and as such, are not untruthful per se–even if they have been rejected by most legal scholars. But when he says that Virginia could be the “tipping point,” and when he says that George Soros and are “pushing for this,” he has spoken untruthfully about material facts.

If Black is not willing to play straight with the facts, then his opinions do not merit serious consideration.

The “questions” Black poses about the Article V Convention process have answers that are grounded in fact, history, and law. For him to suggest otherwise is to purposefully sow confusion and fear.

The conservatives who have endorsed this effort include:

Ken Cuccinelli, Mat Staver, Mark Levin, Glenn Beck, David Barton, Col. Alan West, Sen. Tom Coburn (ret.), and many others. These are the people who, in fact, are “pushing for this.”

Senator Dick Black, what is your plan to stop the abuse of power in Washington, D.C.?