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New documents uncovered: Scalia reveals his true opinion of an Article V Convention of States

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 was 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.