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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.

29 Comments

  1. Andra Lance says:

    I remember 37 years ago there was tremendous concern among “the people” about the debt that we were leaving for the next generation. “We the People” just continued to trust our elected officials to do the right thing. Now it’s time to step in and reset the direction of our country before it’s too late. Thank you Founding Fathers for looking out for us… and thank you Lord!

    • cliff wilkin says:

      This application is limited to 3 areas:
      (a) Impose fiscal restraints on the Federal Government.
      (b) Limit the power and jurisdiction of the Federal Government.
      (c) Limit the terms of office for federal officials and members of Congress.
      Please sign E-Petition. Takes less than 20 seconds.
      http://www.cosaction.com/?recr...
      This will encourage your local state rep to become more involved in protecting your state’s sovereignty.

    • Harry Cauley says:

      Andra; You are so right. But national debt is off set by inflation.Think about your home mortage for instance, when you took on the financing loan the payments were set usually at a flat rate, unless the interest rate fluctuated during the course of the loan. Over the 30 year life of the loan your income increased due to inflation. The payment stayed steady say $500 per month, just as a number. The $500 payment as a percentage of your income became lower, Let’s say $500 = 20% of income at enception. 20 years later inflation created income grew 30% If your income was $2,500 per month (20% at inception) became $3,250 per month. So it became easier to pay out $500 per month on the balance due than it was at enception.

      Inflation was created by our legislatures to avoid Depressions but not Resessions. Don’t ask me to explain the difference beteen the two because to my mind they are the same.

      With national debt it is far too hard to have a balanced budget due to the fact we have desasters are monumental and then wars we need to fight to keep our freedoms. Oh the Vietnam, the Persian Gulf, the Iraq and the Lybia wars were all politcal and we shouldhavenever been involved in those period.

      WWI and WWII were wars we had to fight and those wars are the type I am talking about. They cost a lot of money and we had to borrow heavily. These types of things unbalance an economy and borrowing is needed. We do spend far too heavily in supporting UN emergencies and globally send money to foriegn governments we do not have. We need to stop doing those things as they ad to our national debt.

      But debt is not all bad but yes the way congress and our presidents use debt is bad. Even you and I use debt but in a more responsible way. God Bless you and hope in some small way helps you understand national debt.

      • Bob says:

        We did not HAVE TO fight WWI. Wilson pursued policies that favored the Allies & pushed us towards inevitable conflict with the Central powers. Had we stayed out of what was not our concern, the war would have eventually ended with a more equitable peace between the European powers rather than the treaty of Versailles on which the vindictive French demanded (and even Wilson opposed.) This means we would never have seen:

        1) The rise of Communism & the Soviet Union
        2) The rise of Hitler & the Nazis
        3) The fall & dismemberment of the Ottoman Empire
        4) WWII & the Holocaust
        5) The expedited, post-WWII deterioration of the British & French Empires which led to the creation of the Islamic world (from former Ottoman territory) as it exists today & the radicalism/terrorism it exports.
        6) The Cold War

        • Tom says:

          What I believe has done more internal damage to the United States in the long run is the alleged passage of the 16th Amendment and the confirmed passage of the 17th Amendment (also largely the fault of the Wilson Administration. The 16th gave the feds the money they needed to grow their power. The 17th took away the states’ representation in Congress making it easier to foist things off on the states and control the agenda. Progressives knew that the people would be fickle and let them get away with anything as long as their “representatives” brought home the bacon (Robert Byrd of WV made a career out of it). What frustrates me about this effort is that they did not have the foresight to include repeal of the 17th as part of the effort. Without that, we still have the states held for ransom by the feds. Sad.

      • Marsha Scott says:

        Harry–Contrary to popular belief, there is no such thing as good debt. “The rich rule over the poor, and the borrower is slave to the lender.” — Proverbs 22:7. :)

  2. Jim says:

    I too remember the concerns of 30+ years ago, and have read of the concerns of the Founders. “The Lord” had nothing to do with this structure – in fact the bulk of our Constitution was written by a Deist (Jefferson), and the “Creator” phrasing was purposefully written by him (and argued over with Adams) to ensure those with differeng religions (or none) would be equally represented.

  3. cliff wilkin says:

    The Founders unanimously provided Article V option for the states to balance the federal government’s overreach. More than 400 such state applications have been filed over the years including the first couple that led to the bill of rights. As with all amendments to the constitution 38 states (both houses) are required for ratification. This is an enormously protective requirement that has only been reached 27 or so times.
    The COS Project application has already been passed by 6 states (including Alaska) and 20 or more state houses. This application is limited to 3 areas:
    (a) Impose fiscal restraints on the Federal Government.
    (b) Limit the power and jurisdiction of the Federal Government.
    (c) Limit the terms of office for federal officials and members of Congress.
    Please sign E-Petition. Takes less than 20 seconds.
    http://www.cosaction.com/?recr...
    This will encourage your local state rep to become more involved in protecting your state’s sovereignty.

  4. Christopher Miller says:

    “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……I listed first among the things that I would like to have considered the structural issues at the federal level. I do not have a lack of trust in the American people. I am the one here who is least terrified of a convention. We have come a long way. We have gotten over many problems. But the fact remains that a widespread and deep feeling of powerlessness in the country is apparent with respect to many issues, not just the budget issue. The people do not feel that their wishes are observed. They are heard but they are not heeded, particularly at the federal level. The Congress has come up with a lot of paliatives—the legislative veto, for example-which do not solve the problem at all ” Scalia 1979 – Enough said!

  5. Peter Krauss says:

    I really don’t understand the fear that the American people have with the American People utilizing a tool to PROPOSE Amendments to the Constitution, after all, the Congress, which is distrusted by over 80% of Americans, have the ability to PROPOSE Amendments every day. Let us use the tools in our arsenal to peacefully restore our Republic. I truly believe that a simple show of force by 2/3 of the States accepting the Resolution to call for a Convention will be enough to strike fear into the hearts of those in Congress and could result in great changes even prior to any Convention of States. It is time for the sovereign States to flex their muscles! Call for the Convention.

  6. GaryRTN says:

    Article V was added by Alexander Hamilton so the States and their representatives would be able to have a voice in what could be added to our Constitution, and not just the cronies in DC. We need to come together as a country and let these career politicians know we are feed up with their spending, limit their terms for the Congressional & Judicial branches, and remove Presidential Executive orders. We should demand they participate in Social Security and not have their own separate plan for life that we pay for!!! An Article V convention would start the process where WE THE PEOPLE would start a dialog in each state to ensure our voice would be heard!!!! Our representatives are not listening to us & they are for sure not going to limit themselves in either spending or terms. That’s why Article V was added. Nothing happens when GOOD PEOPLE DO NOTHING!!! Lets do this!!! Visit here to sign the petition, learn more, and volunteer: http://www.cosaction.com/?recruiter_id=1351201

    • John Vettel says:

      Article V is the separate Article of our Constitution the defines the process for amending the Constitution. Just as Article I defines the Congress, Article V stands alone. While drafting the final Constitution, George Mason noted that only Congress could propose amendments and reminded the committee that the states would have no recourse, should the federal government become tyrannical (like it is today). He proposed the addition of the provision for a Convention of the States that could also propose Amendments, thus providing a way to bypass congress, if the need should arise. That proposal was unanimously adopted.

  7. Bob Diamond says:

    An Article V Convention of States is the US Constitution’s best answer/solution to reigning in US Government tyranny.

  8. donald j. sutton says:

    Article V is the safest, most robust solution and is authorized by, and operates within the Constitution.

    http://www.conventionofstates.com/justice_antonin_article_v_convention

  9. Citizens concerned for the future of their country, under a federal government that’s increasingly bloated, corrupt, reckless and invasive, have a constitutional option. We can call a Convention of States to return the country to its original vision of a limited federal government that is of, by and for the people. Help restore Liberty http://www.cosaction.com/?recruiter_id=1056585

  10. Monica Sellers says:

    Almost every major problem facing our country can be traced back to the unconstitutional overreach of the federal government. The Convention of States is the only solution big enough for the problems in our country. We must use Article V of the US Constitution to bring the power back to the people through the states. Please take a moment to sign the petition which will be sent to your state legislators: http://www.cosaction.com/?recruiter_id=1113502

  11. Paul Adcock says:

    This is the last best hope to save the Republic. The Founders knew that this time would come. We have 6 states done and are likely to get Oklahoma and Missouri. We also have big efforts underway in New Hampshire.

    Go to http://www.cosaction.com/?recruiter_id=1858 to find out more.

  12. Michael Millikan says:

    What an intellect. Of course, Justice Scalia realized that the Article V Convention of States process was included in the Constitution for the States to use when the Federal Government ignores its constitutional restraints and runs amuck trampling on state rights and personal liberties. It is far past time that it is used. Got to our website to learn more: http://www.cosaction.com/?recruiter_id=1501881

  13. No one who is being honest really thinks a convention of states could run away and destroy our Republic. The people pushing that nonsense are the ones with a vested interest in the status quo.

    Think about it.

    http://www.cosaction.com?recruiter_id=12476

  14. diane holzapfel says:

    NOW is the time, we NEED Article V Convention of States!

  15. Bill McDowell says:

    An Article V convention under the Convention of States application is the way to restrain the federal government and return power to the states.

  16. Fred Yerrick says:

    I believe that the subject was well addressed and discussed in this article. The fear is in the unknown and that we have to have “Enlightened Citizens” who will acted with Moral values. Please join us at conventionofstates.com and cosaction.com as we the Grass Roots move the Article V process to fruition for the first time in our history! We the People are needed to save this Republic.

  17. Rick Bulow says:

    The founders put Article V in the Constitution for a reason. It is up to We the People to use it.

    The Constitution had been amended 18 times (the first 10 Amendments + 17 other amendments) by Congress, and outside of a few decent amendments they failed.

    Call for a Convention, and let the people propose amendments.

    http://www.conventionofstates.com

  18. dave badarak says:

    who in southeast Mich. can i contact to see where Mi stands

  19. Leonard McChesney says:

    Excellent summary. Thanks.

  20. [...] You will hear claims it is too risky, claiming that once we open the door to enforcing the Constitution, forces who want to totally remake the United States can throw out the document and start over. That is simply not true. You will hear that revered conservative Justice Antonin Scalia was opposed to an Article V convention. That also is not true. [...]

  21. Tom says:

    It is a great disappointment to me that repeal of the 17th Amendment was not included in the intended list of changes anticipated at such a convention. It is also a bit disappointing that more people connected with this effort (which I still support) have not had the sense to clearly explain the difference between a CONSTITUTIONAL CONVENTION (what happened in New York when the original constitution was created) and an Article V, Convention of States. The former allows for a complete re-write while the latter calls for on proposing Amendments that must still pass through the approval process provided for by the constitution. It is virtually impossible to even think that 3/4 of the states would be willing to vote in favor of anything so radical as to disassemble the constitution itself. That would be beyond belief under the worst of circumstances. Get on with it, but given the fact that only ten states have completed the approval of a resolution, it would not be difficult to add repeal of the 17th to the resolution going forward. Just sayin’

  22. N.R. Gant says:

    As long as we don’t have term limits on the house, senate & supreme court we will continue to have less and less representation of the people by our elected officials and appointed supreme court. With term limits it will be much easier to keep bad actors that are popular with the people because of their charisma vs. Substance.

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