Why this Roe v. Wade ‘mastermind’ opposed the Article V convention process

On October 22, 2019, Andrew Schlafly, the famed anti-feminist activist Phyllis Schlafly’s son, testified before the Pennsylvania legislature, urging the Assembly to vote against an application for an Article V convention. He invoked the former Chief Justice Warren Earl Burger, citing a letter Burger wrote to Mrs. Schlafly more than three decades earlier. Amazingly, his opposition to the Founders’ check against federal tyranny appears to have been rooted in a tragic tale about abortion and Roe v. Wade.

“There is no effective way to limit or muzzle the actions of a constitutional convention,” Andrew quoted Burger. “The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey.”

“After a convention is convened,” he continued, “it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the Confederation Congress ‘for the sole and express purpose.’ ... A constitutional convention today would be a free-for-all for special interest groups, television coverage, and press speculation.”

The letter from Burger reeks of misinformation and slander, including the phrase ‘for the sole and express purpose,’ which the Chief Justice frequently employed. For one, Burger’s use of “constitutional convention,” by which he meant an Article V amendments convention, exposes his underlying untruthfulness about the topic.

Basic constitutional integrity reveals that the Constitutional Convention of 1787 and an Article V convention, which is internal to the Constitution, are two distinct entities. Constitutional conventions produce, by design, new constitutions; Article V only amends “this Constitution.” “If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates,” George Washington advised. Article V, in other words, corrects our founding document — it does not rewrite it. Nevertheless, Burger, like many of his fellow Article V opponents, persisted in his dishonesty about the purpose of the process. 

In order to justify his lie, Burger subtly insulted the Founders, claiming that the “meeting in 1787 ignored the limit placed by the Confederation Congress ‘for the sole and express purpose.’”

As already noted, the Chief Justice was fond of this phrase. During his remarks at the Bicentennial Celebration of the Constitution, for example, Burger emphasized his erroneous belief that the document had been illegally adopted.

“When [Alexander] Hamilton tried to get the Continental Congress early in 1787 to convene a constitutional convention, they would not hear of it. The most he could get was a resolution to appoint a committee — a committee — ‘for the sole and express purpose’ of taking another look at the Articles of Confederation to see if they could be patched up and improved,” he said. “The language of that resolution was “for the sole and express purpose” of doing that.

“When [the new proposed Constitution] was reported back to the Continental Congress in New York shortly after the meeting in Philadelphia,” he added, “resolutions were offered to censure the delegates for drafting something they had not been authorized to draft.”

Convention of States Co-Founder and Chancellor Emeritus of Patrick Henry College Michael Farris examined these claims on a recent edition of “The History and Future of Article V: A Conversation.” Notably, Burger’s assertions imply that the Founders, including George Washington, Benjamin Franklin, James Madison, and many more, violated their authority, creating an illicit governing charter — an outrageous accusation.

The question is, why? Why did Burger’s dogmatic opposition to Article V lead him to level such unfounded slander against the Founders?

SEE ALSO: The History and Future of Article V: A Conversation vol. 3

Firstly, Burger’s close friend, William F. Swindler, wrote one of the most “over-the-top” assaults against Article V, which he rejected “as contrary to the weight of constitutional history.”

When Swindler announced his retirement in 1984, Burger wrote a glowing tribute to the liberal law professor. “Over the years, I have enjoyed a warm personal relationship with Bill,” the Chief Justice described. “I particularly have enjoyed visits and walks with him at Williamsburg and conversations on the history of the Supreme Court.”

Considering their closeness, it is not unfathomable that Swindler might have swayed Burger’s perspective on amending the Constitution. Specifically, Swindler argued that the “convention proviso in article V, as the internal evidence of the convention and ratification debates strongly suggests, was never considered as anything but a transitional safeguard” [emphasis added].

“The thrust of all the writing concerning the convention proviso would seem to be that once the constitutional system was demonstrably operative, the proviso itself would become inoperative since its only function was to provide a means of correcting the system if it failed to become self-sustaining,” he wrote.

Additionally, Swindler suggested that “the present proposal concerning article V is indictable as capricious and subversive of the entire constitutional system.” Whereas proponents of the Article V convention process contend that the federal government has overstepped its bounds, Swindler seemed convinced that the states, which are more accountable to the people, threatened the Republic’s federalist system of governance.

“The current proposal is an apt illustration of Hamilton’s warning that state legislatures would seek to alter the Constitution only with a view to the increase of their own powers,” he said, forgetting to mention that Hamilton argued passionately for the convention process in Federalist No. 85. “[The] proposal must be condemned as an improper attempt on the part of the states to intrude upon the area of action which the people of the United States have established as their exclusive domain.”

Swindler, who seemingly embraced Woodrow Wilson’s view that (in Swindler’s words) “power will be settled… as broad as the legitimate needs of the [national] government may require,” was more concerned with the states asserting their authority than that the federal government might become, as the Founders worried, “oppressive.”

Secondly, and perhaps most importantly, Burger seems to have rejected Article V to protect his court’s landmark case on abortion. Although Burger has frequently been called a conservative, the Chief Justice oversaw and masterminded Roe v. Wade, voting alongside the majority in favor of abortion rights.

In response to this devastating pro-life loss, many states turned to Article V, with 19 of the necessary 34 states adopting applications for a convention to overturn Roe. Around this time, Burger launched his attacks against Article V and the Founders, insinuating that, just as the 1787 Convention (allegedly) “ignored the limit placed by the Confederation Congress,” a convention to overturn Roe might overstep its bounds and threaten the entire Constitution.

Those who still use these disproven arguments today must understand where they came from and how they have shaped the debate for the progressive growth of government and abortion rights in America. While men like Burger and Swindler, who have an interest in maintaining the status quo in Washington, have always been queasy about structural reformation, an Article V convention remains the people's best bet for reclaiming constitutional originalism. 

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