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Paul Gardiner / Feb. 24, 2016

Justice Antonin Scalia Favored a Limited Convention of States

With the passing of Supreme Court Justice Antonin Scalia, America lost one of its most ardent and dedicated protectors of the United States Constitution. Among other things, he was well known and respected for his jurist’s belief that the Constitution is not a living organism — that it is a legal document saying what it says and not saying what it does not say. He staunchly defended and practiced interpreting the Constitution as it was originally written and intended.

Until recently, very little has been said about how Justice Scalia felt about the prospect of an Article V Convention of States to propose amendments to the Constitution. Below are some of his comments made during a panel discussion at the American Enterprise Institute Forum for Public Policy Research (parentheses added by the author):

  1. “The founders inserted this alternative method (in Article V) 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 way to get that convention is to take this minimal risk, then it is a reasonable one.”

  2. “—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.”

  3. “I would like to put the whole thing in perspective, though, and tell why I am willing to risk those absurdities (of a runaway convention). What is the alternative? 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.”

  4. “It (Congress) likes the existing confusion, because that deters resort to the convention process. It does not want amending power to be anywhere but in its own hands.”

Justice Scalia’s comments indicate that he was in favor of a limited Convention of States to propose Constitutional amendments that the members of the United States Congress would never make on their own — far too much self-interest and self preservation at work in that body. Thus, state legislators need to take Justice Scalia’s advice and move forward to convene a Convention of States as soon as possible. The purpose of the convention would be limited to proposing amendments to 1) limit the power and overreach of the federal government; 2) impose term limits on federal officials; and 3) impose fiscal restraints on the federal government.

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