What Did Scalia REALLY Say about A5?
The usual suspects who are opposed to organizing an Article V convention claim the Compact for a Balanced Budget cannot limit the convention it organizes, even with the agreement of 38+ states expressed in a solemn sovereign contract. They sometimes even claim Justice Antonin Scalia supports their position. In fact, Justice Scalia is very clearly on record as supporting an Article V convention limited to a specific issue or amendment. He only opposes a wide open Article V convention.
Here is the proof: a partial transcript from the American Enterprise Institute Forum held on May 23, 1979 entitled “A Constitutional Convention: How Well Would it Work?." Panelists included Paul Bator, Walter Berns, Gerald Gunther and Antonin Scalia.
In response to a question about whether an Article V convention can be limited, then-law professor Scalia said:
"There is no reason not to interpret it to allow a limited call, if that is what the states desire."
In response to a question about what good might an Article V convention produce, Professor Scalia gave the following answer:
"I have not proposed an open convention. Nobody in his right mind would propose it in preference to a convention limited to those provision he wants changed. Regardless of the issue – say, a constitutional amendment on abortion – its supporters would want a convention that considers that issue and nothing else; or one that considers only the particular features of the Constitution that they do not like, but precludes consideration of those features they do like. I think there is nobody, except maybe one or two anarchists, who would sincerely want an open convention for its own sake, to expose the whole system to possible change."
In response to a question from the audience asking what type of amendment requires the extraordinary remedy of state-initiated Article V change, Professor Scalia gave the following response:
"I listed first among the thing 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."
In response to a follow-up about the specific reform he had in mind, Professor Scalia said:
"When I say I do not much care what it is about, I mean that among various respectable issues for a constitutional convention, I am relatively neutral as to which goes first. The process should be used for some significant issue that concerns the American people, but which issue is chosen is relatively unimportant. I would not want a convention for some silly purpose, of course. But I think there are many serious purposes around, many matters the profoundly concern the American people and about which they do not now have a voice. I really want to see the process used responsibly on a serious issue so that the shibboleth – the Richard Rovere alarm about the end of the world – can be put to rest and we can learn how to use the process responsibility fin the future."
Those who oppose the Article V convention process have some valid questions and concerns concerning the logistics of the process and the quality of the amendment that might be proposed. Those questions and concerns justify the Compact approach to Article V. The Compact for a Balanced Budget answers all legitimate questions about the process and the amendment.
But there is no legitimate basis for the claim that Justice Scalia opposes the use of Article V by the states. It is time for the misinformation to stop.
