It bothers me when someone uses another person’s name and reputation to advance their own position, without the other’s consent or agreement. It’s an act of reverse plagiarism: attributing an opinion to someone else that they didn’t hold. The practice is especially galling when presenting a deceased man’s opinion as the opposite of his actual words. Yet that is a favorite tactic of Article V convention opponents – frequently attributing convention of states opposition to the late Justice Antonin Scalia.
One such opponent, Ward Barker, recently made use of the tactic in a letter to the Epoch Times (“No Constitutional Convention”). It demands a rebuttal.
In his letter, Mr. Barker quoted Antonin Scalia as saying: “This is not the century to write a new constitution.” While that quote is accurate, Mr. Barker twisted it into a different meaning as his letter continued:
Whether it’s called a Convention of States, Constitutional Convention, or an Article V Convention, they’re all essentially variations on the same theme, with the same end in mind: replace what we have.
With that statement, Barker implied that Scalia’s opposition to a rewrite of the Constitution was also opposition to an Article V convention. Not only did Antonin Scalia never oppose a convention of states, he in fact supported one – the polar-opposite of what Barker implies.
Justice Scalia revered the Constitution, and he understood the difference between an Article V convention and the “writing of a new constitution.” The latter would be an extra-constitutional overthrow of our republic by replacing our founding document with something else. Conversely, an Article V convention is a constitutional means for states to take corrective action when federal checks and balances fail to keep our “public servants” in service to the public.
A convention of states is a peaceful exercise of self-governance, in which delegates from the states debate solutions to national problems, for subsequent presentation to the public. What opponents to an Article V convention never mention is that those delegates lack the power to implement their proposals. That power is retained by the states and the people via the ratification process. 38 states must ratify proposals from the convention for them to become lawful amendments to the Constitution. A mere 13 states can prevent ratification. Hence, the danger of radical proposals becoming amendments to the Constitution is highly overblown.
Contrary to what opponents attribute to the late Antonin Scalia, he was actually in favor of an Article V convention. During a 1979 panel discussion on the subject, Scalia expressed concern that Congress had become “professionalized,” the bureaucracy was serving the politicians instead of the people, and the courts had become “activist.” He further said that the founders had provided a constitutional remedy.
I don’t have a lack of trust in the American people and I’m the one up here who is least terrified of a convention. … There is a widespread deep feeling of powerlessness in the country. … One remedy for that, the one specifically provided by the Constitution is the amendment process which bypasses the Congress. I would like to see that amendment process used just once at first. I don’t much care what it’s used for the first time. I think just having it used once will exert an enormous influence upon both the Congress and the Supreme Court. … I think we’ll get the parameters established of how you do it, what can be done, and I think after that, the Congress and the Court will behave much better.
Scalia continued, saying that he understood the risks inherent in an Article V convention, but felt they were minimal and more than justified given the gravity of the consequences we face.
I encourage readers to watch that panel discussion, and decide for themselves if Antonin Scalia was opposed to an Article V convention, or if opponents such as Mr. Barker are misrepresenting their own position as that of Antonin Scalia.
Opponents such as Barker use the fear-based arguments of “big government” advocates, while hiding behind the reputation of a deceased patriot. They claim that an Article V convention could cost us our civil liberties. But they never explain how malicious convention delegates could eliminate things like our right to bear arms, when a mere 13 states could preserve that right for all 50 states.
The convention of states movement – which Justice Scalia favored – is not proposing new laws which will be ignored (as Barker claims). It is proposing the elimination of incentives for corruption and the fortification of the checks and balances which our founders considered critical for a healthy republic.
But since opponents choose to appeal to our fear, I’ll play along. Which should we fear most:
- That there aren’t even 13 states which would vote to preserve our civil liberties, or
- That unaccountable federal judges may cancel self-governance by invalidating our electoral choices?
The former is fear-based speculation about a future problem. The latter is a crisis which is underway NOW.
Federal judges are countermanding the results of the last election with court orders to retain a federal workforce that refuses to comply with our will, continue corrupt spending of our tax dollars, and ensure our communities are populated with violent illegal aliens. The republic that we call Uncle Sam is dying, while convention of states opponents counsel against performing CPR … because we might break a rib.
