Justice Antonin Scalia Opposed a Constitutional Convention

JBS.org
February 24, 2016


"I certainly would not want a Constitutional Convention. I mean whoa. Who knows what would come out of that?" - Justice Antonin Scalia, April 17, 2014 (Click here to see video of Scalia's statement.)

In a recent email from former U.S. Senator Tom Coburn (R-Okla.) to Oklahoma state legislators encouraging them to pass the Convention of States application for a "limited convention," Coburn used a supportive quote attributed to the late Supreme Court Justice Antonin Scalia. The quote, as it appeared in the email, reads:
 

"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." ~ Justice Antonin Scalia~

Reading this, one might believe that this portrays a recent view of the late justice, especially since Coburn's citation says "Justice." However, this is misleading.

Although no date was provided with the quote, the quote comes from remarks delivered by Scalia at a forum hosted by the American Enterprise Institute on May 23, 1979 - seven years before President Ronald Reagan nominated Scalia to the Supreme Court. The AEI forum was entitled, "A Constitutional Convention: How Well Would It Work?" and was moderated by former ABC News chief John Charles Daly.

Scalia was not a justice of the Supreme Court when he said those words, but rather a law professor at the University of Chicago Law School. At the time, Scalia also worked at the American Enterprise Institute, which he was addressing when he spoke in favor of the idea of a limited convention.

However, contrary to Senator Coburn's attempt to protray Scalia as a supporter of an Article V constitutional convention, the quote he uses from 1979 does not accurately reflect Scalia's recent views on the subject of a modern-day constitutional convention.

On April 17, 2014, Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg appeared on an episode of the Kalb Report, a one-on-one panel discussion television and radio program jointly produced by the National Press Club Journalism Institute, the George Washington University, and the Philip Merrill College of Journalism at the University of Maryland. The subject of their program was "A Conversation about the First Amendment."

During the program, host Marvin Kalb asked a question from Seth Dawson of the Office of Congressman Denny Heck (D-Wash.) regarding Justice John Paul Stevens's recent suggestion of a constitutional amendment to modify the Second Amendment. The question was, "If you could amend the Constitution in one way, what would it be, and why?" The first to answer was Scalia, who replied (click on above image for video):
 

I certainly would not want a Constitutional Convention. I mean whoa. Who knows what would come out of that?

Scalia acknowledged the difficulty of amending the Constitution and speaking in the context of amendments he clearly warned against the notion of convening a convention, which is the second method for amending the Constitution under Article V.

Following a speech Scalia gave to the Federalist Society in Morristown, New Jersey, on May 8, 2015, during the question-and-answer session, Scalia was asked whether a constitutional convention would be in the nation's interest.

"A constitutional convention is a horrible idea," Scalia replied. "This is not a good century to write a constitution."

Although the Convention of States (COS) Project would have one believe that a constitutional convention is a "totally different creature" from an Article V convention or "convention of the states," as they call it, this is simply not true.

Black's Law Dictionary, the definitive legal lexicon in American law, defines the term constitutional convention, then refers to an Article V convention as an example of one:
 

Constitutional convention. A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution. Art. V of U.S. Const. provides that a Constitutional Convention may be called on application of the Legislatures of two-thirds of the states. [Emphasis added]

This definition of a constitutional convention originates from the second edition of A Law Dictionary: Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient, and Modern published in 1910, by Henry Campbell Black (1860-1927), and remains unchanged in contemporary editions of Black's Law Dictionary.

Professor Scalia may have entertained the notion of a convention back in 1979, but by 2014 Justice Scalia was firmly set against it and rightly so, noting the uncertainty that could arise from such a modern convention. This is especially true given today's political climate and prevailing lack of education about the Constitution. The solution, as The John Birch Society advocates and Justice Scalia understood throughout his judicial career, is adhering to the Constitution, not changing it by way of amendments at an unpredictable convention.

First Action Request:
Click here for the phone number of your state legislators. Phone them and ask them to vote against all bills and resolutions making application to Congress to call a convention for proposing amendments.Tell them that our state legislatures and Congress should enforce the Constitution, not rewrite it.

Second Action Request:
Click here to send a prewritten, editable message to your state legislators. It is preferable (to get the maximum impact) to edit the message in some way, such as adding opening or closing remarks, or editing the message itself. Then send the email message.

Thanks.

Your Friends at The John Birch Society