Scalia and Article V

September 11, 2017 by  

Arizona’s State Capitol in Phoenix is the place and September 12th is the time.  Officially Commissioned delegates from around the country will gather to formalize the rules by which future amendments convention(s) dealing with Congressional Term Limits or a Balanced Budget Amendment will abide (BTW, we add $1 Billion to our national debt EVERY DAY).   The convention is open to the public.

Fears of a ‘runaway’ convention and half-truths persist, however, and a particularly egregious one is the late Justice Antonin Scalia’s opinion on states proposing amendments.  This piece from the Article V Caucus Newsletter  is worth a read.  Here’s an excerpt:

What Did Antonin Scalia Really Believe About Article V
In support of their position, various Article V opponents repeatedly proclaim that former Supreme Court Justice Antonin Scalia thought an Article V convention would be dangerous. They take one of his quotes and twist it to support their position. In 2014 Scalia and Justice Ginsberg were interviewed by Marvin Kalb on the Kalb Report.  The first hour of that interview dealt with the structure of the American government, freedom of the press and the Bill of Rights.  Once the first hour was completed for network TV, another 15 minutes of discussions were continued on C-Span.Then at about 1 hour and 6 minutes in the record of that interview, while posing questions submitted by others, Kalb asked, If you could amend the Constitution in one way, what would it be and why?  Scalia responded, I certainly would not want a Constitutional convention. I mean Wow!  Who knows what would come out of that. Then he went on to say, But if there were a targeted amendment that were (sic) adopted by the states, and he went on to use an example of such an amendment he would support.  His suggestion was an amendment that would make the amendment process easier.  Watch that interview HERE.It is the above interview that opponents of Article V point to as seeming evidence that the respected jurist opposed the use of Article V.  Note that Scalia expressed opposition to a Constitutional convention, a convention for writing or rewriting the constitution.  That is not what an Article V convention is about.  That entire Article is limited to setting forth ways to propose amendments. Scalia’s follow-up remarks actually were in support of targeted amendments adopted (or proposed) by the states.  That is what the second option in Article V provides for.

Well before Scalia was a Supreme Court Justice he set forth his views on the Article V provisions for a state-led convention for proposing amendments.  In a forum conducted by the American Enterprise Institute (AEI) for Public Policy Research held on May 23, 1979, Scalia acknowledged the theoretical possibility that an Article V convention could propose an extreme or unpalatable amendment, but he noted that the fear of that possibility could equally be employed as a reason against convening Congress. He suggested that the right question to ask is how high we think the risk is and how necessary we think the convention is.

He went on to say, The founders inserted this alternative method of obtaining constitutional amendments because they knew the Congress would be unwilling to give attention to many issues the people are concerned with, particularly those involving restrictions on the federal government’s own power.  The founders foresaw that and they provided the convention as a remedy.  If the only way to get that convention is to take this minimal risk, then it is a reasonable one.  See the transcript if that forum HERE.

During that forum Scalia also made two other relevant points.  As far as risk is concerned, he reminded listeners, Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much.  Then he said, There is no reason not to interpret it to allow a limited call, if that is what the states desire. The research behind this story was produced by Constitutional scholar/attorney Mike Stern.

This is an historic convention! An amendments convention could occur within just a couple of years 27 states have already agreed that a Balanced Budget amendment is necessary to stem the nation’s debt crisis.


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