Antonin Scalia on the “Minimal Risk” of an Article V Convention

When state legislatures consider whether to apply for an Article V convention for proposing amendments, the primary argument in opposition is invariably that such an application poses an intolerable risk of a “runaway convention,” i.e., a convention that proposes amendments outside the scope of the subject matter for which it was called. This question was considered by a panel of distinguished scholars (Paul Bator, Walter Berns, Gerald Gunther and Antonin Scalia) at an AEI forum held on May 23, 1979. The transcript of this forum has just been posted online (hat tip: Josh Blackman and Adam White).

Three panelists agreed that while the matter was not free from doubt, the best view of the Constitution is that an Article V convention may be limited as a matter of law. One panelist, Professor Gunther, contended that such a limitation was merely a “moral exhortation” that was not legally binding. Tr. 8.

Then-Professor Scalia agreed with Professors Bator and Berns that Article V was best interpreted to permit a limited convention. See Tr. 12 (“There is no reason not to interpret it to allow a limited call, if that is what the states desire.”) (Scalia); see also Tr. 7-8, 11 (Bator); Tr. 4-5 (Berns).

Scalia, however, mostly concentrated his remarks on debunking the practical reasoning of the “runaway convention” argument. Acknowledging the theoretical possibility that an Article V convention could propose an extreme or unpalatable amendment, he noted that this possibility could equally be employed as a reason against convening Congress (or any legislative authority). Tr. 5. The right question to ask is “how high we think the risk is and how necessary we think the convention is.” Id.

As far as the risk, Scalia made clear he had “no fear” that “extreme proposals” would come out of an Article V convention. Tr. 5. The risk of a convention exceeding its mandate “was not much of a risk.” Tr. 23. After all: “Three-quarters of the states would have to ratify whatever came out of the convention; therefore, I don’t worry about it too much.” Id.

On the need for a convention, Scalia noted:

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.

Tr. 6.

He went on to explain that the argument against calling a convention effectively gives Congress a monopoly over amendments, contrary to the Framers’ intent: “The alternative is continuing with a system that provides no means of obtaining a constitutional amendment, except through the kindness of the Congress, which has demonstrated that it will not propose amendments—no matter how generally desired—of certain types.” Tr. 12. Indeed, Congress “likes the existing confusion, because that deters resort to the convention process.” Id.

Scalia left no doubt as to how he weighted the risk and reward in calling a balanced budget amendment convention: “The Congress knows that the people want more fiscal responsibility, but it is unwilling to oblige it. A means comparable to [California’s] Proposition 13 is needed at the federal level. The Constitution had provided it. If the only way to clarify the law, if the only way to remove us from utter bondage to the Congress, is to take what I think to be a minimal risk on this limited convention, then let’s take it.” Tr. 13.

Finally, Scalia put the point in the broader context of a constitutional system that was badly out of kilter: “I am not sure how long a people can accommodate to directives from a legislature it feels is no longer responsive, and to directives from a life-tenured judiciary that was never meant to be responsive, without losing its will to control its own destiny.” Tr. 18.

Though uttered 37 years ago, these words don’t seem the least bit out of date today.

The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision

Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. Holder refused to produce certain responsive documents on the ground that they were protected by the deliberative process privilege.

On June 19, 2012, the day before COGR was to vote on a resolution holding him in contempt, Holder asked President Obama to assert executive privilege with regard to the disputed documents. The next day Deputy Attorney General Cole informed COGR that Obama had done so. COGR and the House then proceeded to find Holder in contempt, and COGR was authorized to bring a civil enforcement action in federal court.

Continue reading “The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?”

Shkreli and the House’s Power of Inherent Contempt

Although the congressional contempt statute only applies to witnesses who fail to provide information demanded by Congress, a broader range of misbehavior is subject to Congress’s so-called inherent contempt power. This is the process by which Congress itself, just like a court, can punish witnesses and other individuals who appear before it or attend its proceedings. As the Supreme Court observed long ago, each house of Congress must have this power “to guard itself from contempts” or else be “exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it.” Anderson v. Dunn, 19 U.S. 204, 228 (1821). That “such an assembly should not possess the power to suppress rudeness, or repel insult is a supposition too wild to be suggested.” Id. at 229.

I mention this because it turns out that Mr. Shkreli followed up his antics before the House committee today by tweeting: “Hard to accept that these imbeciles represent the people in our government.” Interestingly, he also tweeted: “I had prior counsel produce a memo on facial expressions during congressional testimony if anyone wants to see it. Interesting precedence.”

Well, I would love to see this “precedence” (I told him as much via Twitter, but so far he has not sent me the memo). But in any event it seems clear that his facial expressions were not the result of nervousness (as his counsel claimed), but were pre-planned expressions of rudeness and insult to the committee. At the very least, there would seem to be a firm basis for the House to direct the Sergeant at Arms to take Shkreli into custody and bring him before the bar of the House to explain himself.

I realize this isn’t likely to happen, but in my view the House would be within its constitutional powers if it did.

Martin Shkreli’s Contempt for Congress

I have never seen anything like the deportment of this witness, who smirked and made various faces while taking the Fifth before the House Committee on Oversight and Government Reform. At least his lawyer did not allow him to make an opening statement. Instead, the lawyer gave an impromptu press conference afterwards, in which he made various exculpatory claims on his client’s behalf and claimed (ludicrously) that his client’s demeanor was not intended to show any disrespect for the committee.

 Update: apparently this conduct shouldn’t have been unexpected.

More from Professor Tillman on Cruz and Clinton

Professor Tillman responds to separate comments by Professor Rick Hasen and me (for the latter see my prior post) regarding legal issues that might affect the candidacies of Senator Cruz and former Senator Clinton.

Tillman notes that there is a conflict between two principles here: “one, protecting the democratic process from wrongful manipulation by prosecutors and courts, and two, the rule of law, applying the criminal law without fear or favor to all, even against those who are politically connected.” (In Cruz’s case, the issue does not involve criminal law, but there is a similar tension. On the one hand, it might seem desirable to have an authoritative decision on his eligibility while, on the other, there is a significant risk that his candidacy could be unfairly disrupted by lawsuits, decisions of various courts and actions by boards of election.)

Tillman agrees with me that this conflict presents a problem to which there is no easy solution. He does not believe, however, that my somewhat casual suggestion that the voters be allowed to make the decision except in cases where there “is no reasonable dispute” represents an adequate solution to the problem. Given the limited effort I put into designing this “solution,” I am sure he is right.

 

 

 

 

Hey, Did You Hear Ted Cruz Was Born in Canada?

Or maybe he was born in New York, and faked his birth certificate to hide the shame. I’m just saying.

Anyway, Professor Seth Barrett Tillman has a new post which compares the amount of attention given to the question of whether Senator Cruz is a “natural born Citizen” within the meaning of Article II, section 2, cl. 5, of the Constitution (a lot) with that given to certain legal issues surrounding a potential indictment of former Senator/Secretary Hillary Clinton (not much). Personally, I can think of a number of reasons for this disparity, the most obvious of which is that the citizenship issue has been publicly and repeatedly raised by another presidential candidate (I forget his name). If Senator Sanders, for example, were to raise one of Tillman’s legal issues in a debate with Clinton, I bet the legal commentariat would be racing to the blogs to express their views.

Be that as it may, I think we should be leery of prosecutors or courts inserting themselves into a presidential election, whether it involves Cruz or Clinton. Unless the legal issue is one that is beyond any reasonable dispute, the risk of politically motivated actors using lawsuits or prosecutions to disqualify candidates seems too high. As Professor Tillman has remarked in a different blog post focusing on the citizenship issue, “ties should go to the runner,” i.e., close questions should be resolved by letting the voters decide.