Slide 14
It is difficult to maintain the illusion that we are interpreting a Constitution rather than inventing one - Antonin Scalia
CLAIM: Supreme Court Justice Antonin Scalia warned against using the Article V Solution. FICTION.
Article V Convention of States opponents are fond of using this quote to scare the bejesus out of folks:
“I certainly would not want a Constitutional Convention. I mean, whoa. Who knows what would come out of that? “. - Antonin Scalia
Justice Scalia will go down in history as one of the most originalist jurists the country has ever produced. If he said a “Constitutional Convention” is a bad idea, we had better steer clear!
How can COSA PA rate the claim as fiction when we have the video clip of him saying it?
As with all things Article V related, we must take a deeper look, rather than the cursory ‘nothing else to see here, just believe what we say’ approach the opposition employs, banking on no one actually studying the facts.
In April 2014, Justice Scalia and Justice Ginsberg were interviewed by Martin Kalb on the show “The Kalb Report” and asked this question:
“If you could amend the Constitution in one way, what would it be and why?”
Justice Scalia replied with the now infamous quote:
“I certainly would not want a Constitutional Convention. I mean, whoa. Who knows what would come out of that? “
The opposition stops there, proclaiming that the most conservative judge is against using the Article V convention process to amend the Constitution.
But why do they cherry-pick that sentence? It neatly fits their agenda to undermine the Article V Convention process and keep power concentrated in DC.
Was that really his complete answer? Of course not. Here is Justice Scalia’s full answer:
“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 was adopted by the states, I think the only provision I would amend is the Amendment Provision. I figured out, at one time, what percentage of the populace could prevent an Amendment to the Constitution. And, if you take a bare majority in the smallest states by population, I think something less than two percent of the people can prevent a Constitutional Amendment. It ought to be hard, but it shouldn’t be that hard.”
Don’t take my word for it; here is Justice Scalia:
The opposition only repeats the first sentence, ad nauseam, because the rest of his comments destroy another of their unsupported allegations (more on that later in Slide 16). Thus, the opposition has surgically excised just that one sentence, falsely claiming that any Convention of States called has the power to rewrite the Constitution based on their Holy Grail, their “Con-Con.”
Relying on one sentence from a much larger conversation, they claim it is all the proof they need. Their aim is to scare you so deeply that you will not fact-check the assertion.
Where is their in-depth investigation of case law on this topic? If they were right, shouldn’t they be able to point to a list of cases already adjudicated that show judges have studied this and agree with the conclusions they are claiming?
Justice Antonin Scalia was a constitutional scholar of the highest order. For 30 years, his job as an Associate Justice was to research case law to make an informed decision and render a just verdict, not one based on ideology.
Justice Scalia had unique and unparalleled expertise in the decisions from prior cases, establishing the precedents governing the convention of states' process and the difference between constitutional and amending conventions.
This is where that ‘closer look,’ specifically at the terminology employed, is essential.
Again, Justice Scalia’s specific words:
I certainly would not want a Constitutional Convention. I mean, whoa. Who knows what would come out of that?
What he most notably did NOT say is that he would not want an Article V convention of states. That distinction is everything.
The terms "constitutional convention" and "Article V Convention of States" are often used interchangeably by the opposition but refer to different processes with distinct purposes and implications.
- A Constitutional Convention:
- A constitutional convention implies a broad gathering that can rewrite or significantly alter the Constitution. It carries the potential for sweeping changes, including drafting a completely new constitution.
- Historically, there have been two constitutional conventions held in the United States
- 1787 Philadelphia Convention, which resulted in the current Constitution, replacing the (as we covered in an earlier blog) Articles of Confederation, which, at the time, were temporary and insufficient for the long-term governing of our Constitutional Republic. (LII / Legal Information Institute).
- 1861 Montgomery Convention, which drafted the constitution for the Confederate States of America.
Completely separate and distinct from
- An Article V Convention of States:
-
- An Article V Convention of States is specifically a mechanism provided in Article V of the Constitution to propose amendments. It is initiated by two-thirds (34) of state legislatures applying to Congress to call a convention for proposing amendments.
- This type of convention is limited in scope and can only propose amendments; it does not have the power to draft a new constitution or change the Constitution beyond the proposed amendments.
- Once proposed, any amendments from this convention must be ratified by three-fourths (38) of the states to become part of the Constitution (LII / Legal Information Institute) (Khan Academy) (Convention of States Action).
The essential point is that while a constitutional convention implies a more fundamental overhaul of the Constitution, an Article V Convention of States is a targeted process aimed solely at proposing specific amendments without altering the overall structure of the Constitution.
Here again, the truth dissolves the fear so dishonestly propagated on this vital point.
