Anti COS 'Conservatives' Elevate Chief Justice Warren Burger

The ‘constitutional conservatives’ who oppose using the Constitution to restrain the excesses of an out of control federal government, using the Article V convention for proposing amendments process, often site Chief Justice Warren Burger as their ‘expert’ on the subject. Much has been written about his opposition to an Article V convention, for example HERE and HERE.

Burger, Supreme Court Chief Justice from 1969 - 1986, wrote 3 letters in the 1980s arguing against the use of the Constitution’s Article V convention process, but why was he so opposed to using this Constitutional provision to reign in the federal government, of which he was a part?

Burger’s court, in a display of judicial activism, was responsible for the Roe v Wade decision, Burger voting with the majority. The 3 letters were written during the time when an Article V movement to over turn Roe V Wade was in full swing. The proposal was a Right To Life amendment to the Constitution. Burger was trying to protect his Court’s Roe v Wade decision. He was no ‘expert’ on the Article V convention process, in fact it doesn’t appear that Burger did any research on the subject, ever heard an Article V case, or wrote anything about Article V before his objections became known.

Burger was good friends with liberal law professor William F. Swindler, who attacked the Article V process, especially when conservative amendments were being discussed. He believed that Congress should ignore its duty to call a convention if 2/3 of the states applied for one – ignore the constitution was his advice. It is probable that Burger’s views were influenced by Swindler.

Besides Roe v Wade, Burger had some interesting opinions about the 1st and 2nd Amendments. From the National Constitution Center Article, Examining the legacy of Chief Justice Warren Burger, “Another important Burger opinion was from Lemon v. Kurtzman in 1971, when Burger devised a test for deciding if a law or public program that benefited a religion or religious beliefs was allowed under the First Amendment” 

On the 2nd Amendment he wrote in, an Associated Press Op Ed, “The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires. In referring to a ‘well regulated militia’ the Framers clearly intended to secure the right to bear arms essentially for military purposes.”

And here, a short clip from PBS News Hour 1991 where Burger says there would be no 2nd Amendment if he were writing the Bill of Rights and appears to believe that arms should be regulated as automobiles are regulated!

So when ‘constitutional conservatives’ use Chief Justice Warren Burger as their authority on Article V, what is the basis for trusting his opinion on the subject? Why not instead listen to Chief Justice Anton Scalia who clearly supported using the Article V convention for proposing amendments and was presumably much more aligned with their views on the constitution than Burger? Because it appears to be more about preventing the use of this constitutional process no matter how many contradictions their arguments create.

Beware -  You will be told by the opponents that Scalia opposed a ‘constitutional convention’ and the 'proof' produced is this quote: “I certainly would not want a Constitutional Convention. I mean, whoa, who knows what would come out of that”. But as is typical with their arguments, the quote is taken out of context. Watch Here

The question Scalia was asked: “Justice Stevens recently suggested a constitutional amendment to modify the 2nd amendment. If you could amend the Constitution in one way, what would it be and why?”

His Answer, in part: “I certainly would not want a Constitutional Convention. I mean, whoa, who knows what would come out of that. But if there were a targeted amendment that were adopted by the States, I think the only provision I would amend is the amendment provision...."  It is clear that he supported the state initiated process of amending the constitution.

It is true, Scalia was opposed to having a constitutional convention, as is Convention of States. But as discussed in an earlier blog, an Article V convention is not a constitutional convention. Scalia knew the difference, COS knows the difference, our opponents do not.

So in conclusion, Chief Justice Warren Burger who supported Roe v Wade, regulating guns and restricting religious liberty, is the go to expert for the ‘constitutional conservatives’ who oppose the state initiated amendment process outlined in Article V.  Maybe a little research is in order?