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Foreign Policy Analysis
A constitutional convention: How well would it work? (1979) | ARCHIVES

A constitutional convention: How well would it work? (1979) | ARCHIVES


Announcer: From the nation’s capital, the
American Enterprise Institute for Public Policy Research presents Public Policy Forums, a
series of programs featuring the nation’s top authorities presenting their differing
views on the vital issues which confront us. Today’s topic, “A Constitutional Convention:
How Well Would it Work?” Peter Hackes: The politicians and the pollsters these
days all seem to agree vast numbers of Americans want the federal government to stop its deficit
spending and balance the budget. Some want it done through congressional legislations. Others are insisting that it take the form
of a constitutional amendment ordering Congress to balance the budget. Some Balance the Budget Amendment advocates
say the best way to achieve this goal is through a constitutional convention, similar they
say to the only one ever held in this country in 1787 when the constitution was written. But there are no rules written down about
this, not even any guidelines for such a convention. So among the questions being asked are these:
How would convention delegates be chosen? Under what rules would it operate? Can it be limited to just the budget balancing
issue? Or could other proposed amendments be debated
such as school prayer or anti-abortion amendments? There are warnings that our runaway constitutional
convention might even go so far as to limit free speech or establish a national church. And how they ask would such an amendment be
enforced is a future congress decides not to pay any attention to it? Welcome to another Public Policy Forum presented
by AEI, the American Enterprise Institute, a nonprofit, nonpartisan, research, and education
organization. Today’s roundtable discussion will consider
the topic, “A Constitutional Convention: How Well Will it Work?” Appearing on our panel today are: Paul Bator, a member of the Harvard University
Law School Faculty since 1959. Professor Bator once served as Law Clerk to
the late U.S. Supreme Court Justice John Harlan. He has been a visiting professor at Stanford
and at the University of California at Berkeley. He is currently visiting professor at the
University of Chicago. Walter Berns, a resident scholar at the American
Enterprise Institute. Dr. Berns, who was a political scientist,
has taught at Yale, Colgate, Cornell, Louisiana State, and the University of Toronto. At AEI, Dr. Berns is Chairman of the Advisory
Council on a project entitled “A Decade of Study of the Constitution.” Gerald Gunther is William Nelson Cromwell
Professor of Law at Stanford University Law School. Professor Gunther once served as Law Clerk
to the late Supreme Court Chief Justice Earl Warren. He has taught at Columbia and Harvard universities. Professor Gunther is author of the publication,
“Cases and Materials on Constitutional Law” now in its ninth edition, the most widely
used constitutional law book in the United States. Antonin Scalia is a professor at the University
of Chicago Law School. As with panelist Gunther and Bator, he too
is a Harvard Law School graduate. Professor Scalia once served as Assistant
Attorney General in the office of Legal Counsel. He was General Counsel in the Whitehouse Office
of Telecommunications and served as Chairman of the Administrative Conference of the United
States. He is an AEI adjunct scholar. John Charles Daly will moderate today’s program. Mr. Daly is a former head of the Voice of
America and has been a news correspondence and news analyst for CBS News and for ABC
News where he also served as a network vice president. Now, here is Mr. Daly. John Charles Daly: This Public Policy Forum, part of
a series presented by the American Enterprise Institute, is concerned with the prospect
of a constitutional convention to propose amendment of the United States Constitution,
the first convention since the original in Philadelphia in 1787, which scrapped the Articles
of Confederation and substituted our present Constitution. Our subject, “A Constitutional Convention:
How Well Would It Work?” Thirty states have now taken the extraordinary
step of asking the Congress to call a constitutional convention. In the words of Article V of the Constitution,
if four or more states petition the required two-thirds, “Congress shall call a Convention
for proposing Amendments.” Thus, the language of Article V mandate a
general convention to propose such amendments as the convention wishes or does it permit
a convention to be severely limited to the specific issue, or issues, proposed in the
petitions from two-thirds of the states? While petitions for a constitutional convention
to consider other specific issues have become before the Congress, the focus now is on 30
petitions requiring a balanced federal budget except in times of national emergency. The chairman of the Senate Budget Committee,
Maine’s Edmund Muskie, says, of the 30 petitioners, “They have lost their grip on the enormity
of what they are doing, and they have taken the wrong way out of a troublesome dilemma. It is an uncharted course to an unknown destination.” But we are not here concerned with the economic
questions in the balanced federal budget amendment. Our primary interest is the uncharted course,
the fundamental constitutional questions, and the potential political confrontations
raised by the petitions from the states. Professor Gunther, you have described the
road to a constitutional convention as foggy and treacherous, beset with many questions,
many uncertainties, and no authoritative answers. Will you broadly outline the dangers you anticipate? Gerald Gunther: Well, the dangers largely stem
I think from the fact that it is an uncharted course. We’ve had 26 amendments to the Constitution
all produced by proposals from Congress, the alternative, the other route in Article V. We have never used this one. This route is obviously legitimate, but it
is an unknown. And the main danger I see is an undeliberate
process which begins with the 30 states which as of early ’79 have asked for a convention
largely assuming they’re gonna get a convention by and large an up-and-down vote on a specific
proposal to balance the federal budget. By Congress calling a convention somewhat
broader than that which deals with the general subject of fiscal responsibility which in
turn may bring in such things as abortion funding, or health finance funding, or nuclear
power funding which will then be submitted to a convention which I think has a very plausible
case for taking a broader view. Still the Convention delegates will be able
to claim I believe that they represent the people who elected them, and that they are
entitled under the constitutional scheme to deal with any constitutional issue of major
concern to the constituency that’s elected them. So that states quite unthinkingly, quite without
consideration of the implications, have started a process which if it culminates will be a
shock to them, a shock to the country, a process of uncertainty, undeliberate constitution
making, the kind of thing which I think would make James Madison turn over in his grave. John Charles Daly: Professor Bator, you have written,
“I am not in favor of having a convention and not in favor of a balanced budget amendment.” You also, however, vigorously defend the right
of the states and the Congress to limit a convention to issues raised in the petition
for a convention. Will you broadly outline your premise? Paul Bator: Well, my principle point is that
I disagree very strongly with the argument that is sometimes made that the current movement
for a constitutional convention is wholly illegal and illegitimate because it is directed
at a specific constitutional grievance rather than being a call for an unlimited general
constitutional revision. I think it is wholly legitimate for the states
and the Congress, acting together, to try to create a convention addressing a specific
constitutional grievance. The uncertainties of it can’t be eliminated,
but I think that having such a convention was a major purpose of Article V. Whether such a convention, after the fact,
can be effectively forced to limit itself is a harder question, but even there on balance,
so I think the better view is that effective limits can be created by the states and by
the Congress. John Charles Daly: Professor Berns, the constitutional
convention is generally called the alternative method of amending, the more traditional being
proposal by two-thirds of both Senate and House to be ratified by three-fourths at least
of the legislatures of the several states or by conventions in three-fourths thereof. Is there any sense that this was considered
the vehicle for amendment of a specific issue, while the convention method was meant for
unlimited deliberation? Walter Berns: Well, that point has been made
by distinguished professors of law, but I must say that I disagree with those distinguished
professors of law. They have caused me to go through the records
of the federal convention of 1787, and I do not see that those records sustain the point
they make. The language of the amendment as we know it
was essentially worked out almost the last day of the convention, on September 15, 1787,
and the particular thing we’re talking about is this alternative mode of amending the Constitution
was the response to an objection by George Mason, of Virginia, who said, “No amendments
of the proper kind would ever be obtained by the people if the government should become
oppressive.” He was responding, he was making an objection
to the proposal, has it been existed which in effect allowed the Congress of the United
States only to initiate or to propose amendments, as I recall both on their own initiative and
upon the initiative of the states. But at any rate it was indeed the Congress
of the United States that would propose amendments. And Mason objected to this, saying, I think
quite reasonably that as I say, “No amendments of the proper kind would ever be obtained
by the people if the government should become oppressive,” which suggests, of course, that
he understood the possibility at least of the inadequacy of a national government and
that there had to be an alternative mode to deal with the inadequacies. To put it quite simply, if the 1787 convention
was called to some extent because of the legitimate concern of people like Madison and Hamilton
with the fiscal irresponsibility of the states, and the Constitution of the United States
that came out of that convention dealt I think quite effectively with that problem of fiscal
irresponsibility of the states, Mason in the sense foresaw the possibility that there might
be fiscal irresponsibility on the part of the national government or other kinds of
irresponsibility on the part of the national government and that some way had to be found
in the Constitution to deal with that. So quite simply, it seems, to me, quite clear
that this alternative mode of amendment was put in the Constitution to deal specifically
with… or to deal with specific problems. John Charles Daly: All right. Professor Scalia, Richard Rovere in “The New
Yorker,” suggested that the convention method of amendment might reinstate segregation and
even slavery, throw out much or all of the Bill of Rights, eliminate the Fourteenth Amendment’s
due process clause and reverse any Supreme Court decision the members didn’t like, and
perhaps for good measure, eliminate the Supreme Court, itself. Now, what would you anticipate from an unlimited
convention? Antonin Scalia: None of that. I suppose it might even pass a bill of attainder
to hang Richard Rovere. All of those things are possible, I suppose,
just as it’s possible that the Congress tomorrow might pass a law abolishing Social Security
as of the next day, or eliminating Christmas. Sure, such things are possible, remotely possible. I don’t have any fear that such shared proposals
as extreme as he’s talking about would come out of the constitutional convention. Surely, whether that risk is sufficient to
cause you to be opposed to a constitutional convention depends upon how high you think
the risk is and how necessary you think the convention is. If you thought the Congress were not necessary
for any other purpose, the risk that it might abolish Social Security would probably be
enough to cause you to tell them to go home. So, it really comes down to whether you think
a constitutional convention is necessary. I think it is necessary for some purposes,
and I’m willing to accept what seems to me a minimal risk of intemperate action in order
to have that achieved. The reason I feel it’s necessary is I think
the reason the founders put it in this alternative method of obtaining a constitutional convention,
that the Congress is simply unwilling to give attention to many issues which it knows the
people are concerned with and which issues involved restrictions upon the federal government’s
own power. I think the founders foresaw that and they
provided this method in order to enable a convention to remedy that. If the only way to get that convention is
to take this minimal risk, then I think it is a reasonable risk to be undergone. Gerald Gunther: Unfortunately, Nino, you’re
not sitting in the state legislature. I wish you were. And we’re talking about the risks, I think
if we’re talking about what is gone on in 30 or at least 27 or 28 out of 30 state legislatures
of this country in the years of 1977, 1978, and 1979, nobody has talked about the risks. The issue has simply been an up-and-down vote
of, “Do we want the principle of a balanced budget?” And one of the outrageous things about the
process or disturbing things about the irresponsible constitutional process we’re seeing is that
state legislatures have gone very cocky, very close to launching this convention which I
agree in proper circumstances is appropriate without even thinking about the risks. Instead, they’ve been told, “Don’t worry about
it. You can have a convention which will be an
up-and-down convention.” My concern is that we ought not go into this
convention thing on this kind of totally vast inattention, ignorance, misimpression of fact
and law that we’ve been seeing in this. Antonin Scalia: I agree that would be nice,
Gerry, but I don’t understand what your solution is. There is no way it seems to me short of obtaining
action from the Congress itself which inaction is the whole reason for the call for the convention
that that matter can be clarified. So what troubles me about your position is
it’s essentially a throwing up of the hands. Gerald Gunther: No, no, I don’t… I think I’ve got a solution. First of all, for people like you and me to
go around to tell the state legislators what they’d buy when they buy one of these resolutions
which in fact they haven’t known. It in fact has been the case that in recent
months, for example, when Montana has faced this, when California has faced this with
some explanation of what was involved. They have had second thoughts. New Hampshire has said yes, Montana and California
said no. Another thing that can be done is, and I will
join with you about irresponsible action in Congress on this one. Another thing is to press Congress to pay
some attention to what’s going on. Congress has been almost as irresponsible
of the state legislatures in not holding hearing on constitutional convention procedures act
such as the Ervin-Helms proposal in not…in pussyfooting around and in acting like the
worst kind of technical lawyer in finding excuses. Antonin Scalia: But, of course, that… Gerald Gunther: Now, if Congress, I think Congress
can be gotten to make it clear what the states are buying, and that may get us some reconsideration
in states. And if the states want to vote for this they’ll
at least know what they’re doing. John Charles Daly: Professor Bator. Paul Bator: There are things that can be
done. There are political and legal dynamics that
can be mobilized that will minimize the risks. It seems to me that the call of the states
for this convention is actuated by concern about a single grouping of issues. I think that Congress acting responsibly could
provide that the constitutional convention should address those issues and no others. Now, it is a matter of doubt whether that
restriction is legally effective. But, you know, this convention won’t be a
group of Louis the XVI sitting off in Mars somewhere, they, too, are subject to political
dynamics. They, too, are subject to the forces and the
processes of having to worry about their legitimacy. I think the better view on this strict legal
question is that there is nothing in Article V that prevents the Congress from limiting
the constitutional convention to the subject that evoked the states to call it. And I think there would be enormous pressure
on the convention to stick to that. And I think that it’s very unlikely that they
will wander all over the reservation. Gerald Gunther: I think, Paul, that on the
legal issue, Congress has a right to specify a subject, but in my view that specification
is a moral exhortation to the convention creating a presumption that that’s what the issue is
that start of this process around the country but that a convention then is free to overcome
that presumption and to say in our election our worst constituents were interested into
other subjects as well. The fact is they’re gonna run for election
under the Helms Bill. They’re gonna run for election in various
congressional districts. They will respond to concerns about nuclear
power, about abortion, about busing, about school prayers, about the ERA, about whatever
you want to talk about. And you will have a considerable pressure
in the view to say, “Look, I know where we’re supposed to go. They mainly do think about fiscal responsibility. We’ll do that, we’ll throw in a few amendments
about abortion, and busing, and spending the money for that. And while they’re at it, we’ll talk some about
school prayer as well.” So I think the risk is there. John Charles Daly: Let me just by way of background
note that in 1967, Senator Sam Ervin introduced a bill spelling out in some detail the actual
procedures which any constitutional convention would have to follow. It was passed in the Senate, reintroduced,
passed in the Senate, but never taken up by the House, and in the year 1979, a dozen years
later, Senator Jesse Helms has introduced a very similar bill into the Congress. I just wanted to paint that picture for our
audience on television. Would you like to talk to this issue, Professor
Berns? Walter Berns: I’d like to say a couple of things
at this point, Mr. Daly. In the first place, I think I join all of
my colleagues on this panel in hoping that the Congress of the United States becomes
responsible here and pass this legislation that I think it is entitled to pass, governing
certain aspects of this mode of amending the Constitution. For example, I would like to see the Congress
pass a statute specifying the form of an application. And if I were advising some member of the
Congress I would say that the form of the application should be as follows: The state,
for example, to name my native state, the state of Illinois hereby applies to the Congress
of the United States to call a convention for proposing amendments to the Constitution
to the extent possible, in other words, adopting the actual constitutional language in this
application. This would resolve one of our difficulties
as to what a valid application is and that I think would be a valid application. It might also cause the states some second
thoughts if they suspected that the convention, one that it’s called, may address itself to
questions other than the one that is exercising that particular state at that particular time. I also think something could be gained if
the Congress were to become responsible finally, and I think it has been irresponsible by avoiding
this issue, adopt legislation saying that these applications shall be addressed to particular
officers of the House and the Senate specifying those officers. And then also requiring those particular officers,
for example, the Speaker of the House and the President of the Senate, to certify to
the states the receipt of those applications. This is what I think would facilitate this
problem of how many applications there are at a particular time and would prevent these
applications from getting lost in the vast mow of Congress. Now, if I may expand on this, as I think we
may have agreement, and I see Professor Scalia has an objection so I’ll override him quickly. This business about fearing constitutional
conventions, of a sort that we have never had, I’m apprehensive too. And if the truth has to come out, I am not
in favor of this particular kind of constitutional convention, largely because of my apprehensions. On the other hand, if the Congress of the
United States is set up as a model for the proper way as a body that properly engages
in amending the Constitution or proposing amendments to the Constitution in a proper
way then I must say the Congress of the United States is not the model that I would choose. We now have two constitutional amendments,
so-called constitutional amendments floating around the states for their ratification,
one of which the D.C. Amendment is in my considered opinion unconstitutional. And the second of which is simply has lapsed
as of March sometime this year, and what I’m saying is that this extension of the ERA amendment
was unconstitutionally done. And if that’s the way the Congress does things,
let’s try the states. Gerald Gunther: Well, I’m ready to fight border
on D.C. Amendment and on the ERA, but let me fight
with you on something else, first. The fight is on the congressional procedures
matter. I agree with you to the extent that I think
Congress has power and should address itself to such procedural issues in the Ervin and
Helms bills as where you have to send the applications to avoid this Mickey Mouse game
of two senators of the United States saying, “We don’t understand that we have more than
14 proposals because they weren’t addressed to the right people, for God’s sake.” But I think there’s a serious problem with
that legislative proposal. The proposal that’s now before Congress, which
I wish Congress would pay some attention to, includes much more than those procedural things. It provides, for example, that first of all
a state has to specify a subject, which I think is outrageous. I think it would be nice to have a state specify
a subject, but if a state wants to have a general convention, surely, they ought to
be allowed to have that. Secondly, it provides that Congress shall
make its guess as to what the general subject is that the states have in mind, and then
requires delegates of the convention to take an oath to say that they will not propose
or discuss any proposal other than the limitation which I think is outrageous expansion of congressional
powers. It goes on to say that Congress then will
turn down any proposal which it considers beyond the core, which I think is of highly
questionable validity. A lot of the underpinnings of Senator Ervin’s
proposal that’s rather strange since they’re conservative constitutional interpreters and
of Senator Helms, is that the broad discretionary powers of Congress that we associate with
the commerce power and the Fourteenth Amendment power somehow apply, a necessary improbable,
is applied to Article V. I think the least bit of historical understanding,
I think we’d all agree, makes it clear that Article V, the conventional route was specifically
designed to minimize the role of Congress, and not to give them a lot of discretion. And Congress only has the power to make the
minimum provisions for electing delegates, setting up the convention, and then deciding
on the mode of ratification, and nothing beyond that. John Charles Daly: Prof. Bator. Paul Bator: I’d like to see if I can sharpen
what seems to me ought to be the concern about Professor Gunther’s interpretation of Article
V. The central purpose of Article V, of this provision of Article V, was to give the states
recourse in the event that intransigent central authority simply refuses to do something about
what is felt to be a grave constitutional infirmity or shortcoming. Now, grant me by hypothesis, the 35 states
or 34 states now feel that the Congress has intransigently refused to address what they
think is a grave constitutional infirmity and that is fiscal irresponsibility. Professor Gunther says there is nothing that
the states and the people can do about it, absolutely nothing, unless they are willing
to take the risk that the processes they set on foot for addressing that infirmity will
lead to an institution which is wholly free legitimately to reinstitute slavery. Now, I guess most fundamentally what strikes
me is that a process of constitutional interpretation that says this is what our Constitution says
is very strange, it’s bizarre. But of all the possible interpretations why
should we adopt the one that is most uncomfortable and the one that most creates what is clearly
unintended mischief. Because the central purpose of the framers
was to give the states recourse. And what Professor Gunther says is it’s gonna
be very, very hard for you to have recourse because you are gonna create a time bomb,
a kind of a doomsday machine which is utterly without control. Gerald Gunther: Not at all, Paul. You’re using an old law professor’s device
of reductio… Paul Bator: At least don’t say old law. Gerald Gunther: I’ll come back with an older
one. I don’t think… I appreciate the constitutional purpose in
1787 of giving the states recourse. I don’t think I’m denying the states recourse. If the states believed that the balanced budget
is a critical issue that they want to have a convention on, yes, they can have that issue
discussed. They are not likely to worry, nor should they
worry about the risk that Mr. Rovere mentioned about a provision reinstituting slavery for
the simple reason that any fool would know that I… around this country there is not
now support in 38 states for ratifying an amendment to reinstitute slavery. On the other hand, the states should know
that this is a serious business and the serious business of the convention includes any issue
of such magnitude that delegates are likely to be impressed by it that the people want
to have a hearing on it and that there is a chance that states may ratify it that that
isn’t an abolition of a Constitution or reinstitution of slavery, but that is a broader agenda than
the balanced budget itself. John Charles Daly: Professor Scalia. Antonin Scalia: I agree with Paul on what it
seems to me the law ought to be, how Article V ought to be interpreted. There is no reason not to interpret it in
such a fashion that you can have a limited call, if that’s what the states desire. However, one can say that that’s what it ought
to be and if that’s what it seems to be, but it very difficult to say that that is absolutely
how the convention will behave which is the only reason that I am willing to acknowledge
an iota of truth to Richard Rovere’s absurdities. I would like to put the whole thing in perspective,
though, and tell you why I’m willing to run the risk those absurdities. I don’t think there’s any way, and I think
Paul would agree that there’s no way to avoid the risk entirely. I think that what he says is the law but somebody
else may think otherwise, and even if it is the law, the convention may ignore it and
once it does ignore it who knows how that works out. But what’s 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 does not want to have any other way to
get a constitutional amendment. It could have cleared up a lot of these questions,
it could have facilitated them long ago for that matter as was suggested to me by someone
before the program, it could have provided an amendment by the normal amending process
which says that limited calls for state conventions are proper. That would have eliminated all doubt. But the Congress is not about to do that. It likes the power. It does not want to have amending power anywhere
else. Now, not long ago, Proposition 13 came out
of California, and there was a great cheer about the country. That cheer, it seems to me at that time and
it still seems to me was not so much because of the narrow issue that it pertains to. It was a sort of amazement that, by golly,
the people when they really want something badly enough can really get it, despite the
opposition of the legislature at the state level. And I think we’re facing the same thing at
the federal level. The Congress knows that the people want more
fiscal responsibility, but it is unable to provide it. Now what we need is some means at the federal
level like Proposition 13 the Constitution has provided it. I suggest that if the only way to clarify
the law, 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. John Charles Daly: Professor Gunther? Gerald Gunther: I think one of the things we
were talking about earlier illustrates one of the problems. The Helms Bill as to the Ervin Bill says in
at least three places quite consistently, all these issues, all these doubts about the
validity of the application, the scope of the convention’s discussion shall be decided
finally by Congress and shall not be reexamined by any court. Congress is aware of that potential confrontation
and tries to head it off by saying there shall be no judicial review. I think there is a risk in that because although
there is some precedent to say that some aspects of the amendment process are beyond the courts’
authority, it is not at all clear that the courts cannot get into it. I suspect the courts and the present Supreme
Court will be perfectly happy to stay out of it and everybody else is getting bruised,
why should they be? But I think there is a potential confrontation
there because Congress may be aggravating that risk by trying to say, “Keep out,” and
the courts my well say that is an improper restriction on court jurisdiction. John Charles Daly: Professor Berns? Walter Berns: I somehow find it strange that
one of most important aspects of the Constitution mainly the mode of amending the Constitution
should not be subject to rules of constitutional law. Now, that statement immediately needs qualification
but it stems largely from Supreme Court decision of now some 40 years of age in which the Court
has come very close to saying that the issues that arise in this business are political
issues and not justiciable issues. Four members of the Court, led by a very famous
Supreme Court justice, Justice Frankfurter, took the whole step and went so far as to
say that all of these issues should be regarded as political. I find that unacceptable, because I think
that this is something that requires constitutional law and constitutional law is determined in
a way in which we traditionally do these things in the United States. So I, in a sense, would favor legislation,
I would favor if nothing else was involved, I would favor a convention in order to get
some of these things clarified in order to get cases before the courts, in order to have
the solemn word of the Supreme Court of the United States with respect to these very important
issues. They are justiciable issues I think. And since that decision which I’ve refereed
Coleman v. Miller, 40 years ago, there have been developments, of course. We’ve had cases in which the Speaker of the
House of Representatives themselves has been the defendant in the suit and why not the
current Speaker of the House, a defendant in the suit. We’ve had the United States against Nixon,
in which the President of the United States has been shown to be amenable to judicial
process, contrary to a post-Civil War decision, Mississippi v. Johnson. So there have, indeed, been developments in
this area. And it seems to me that it’s entirely possible
that the Court will reverse itself on this judicial, of this political question business
and I think it would be salutary to have some constitutional law coming out of the Supreme
Court of the United States on these questions. Gerald Gunther: I don’t mind the Court getting
into this, but I do want to object to the impression that there is no constitutional
law unless the Court talks. We’re talking about constitutional law and
there are a number of authoritative although not nearly as final voices as the Supreme
Court. Antonin Scalia: All right, you just put me down
for objecting to the Court getting into it. It seems to me that this is not one of the
areas where I think the Court can have a whole lot to contribute. John Charles Daly: Why is that? Isn’t that possible that the Court being attached
to the political issues and principles at least is the body best… Antonin Scalia: Well, but it isn’t in principle. I’ve talked about the need for a convention
because somehow the federal legislature has gotten out of our control, and there is nothing
we can do about it. One can say the same thing about the federal
judiciary. And that’s one reason I am willing to take
the chance in order to have a convention, take the chance of some doubts that now exist. I’m not sure how much longer we have. I am not sure how long a people can accommodate
itself to directives from a legislature that it feels is no longer responsive, and to directives
from a life-tenured judiciary that was never meant to be responsive, without ultimately
losing its sense of control of its own destiny. For example, it utterly amazes me that the
very important issue decided as one of a constitutional law which is about to be decided by the Supreme
Court with affirmative action. We are all sitting breathless, waiting for
the Supreme Court to tell us what our fundamental beliefs are with respect to this particular
issue, without having a hope of getting anything done about it if the Supreme Court should
find that our fundamental beliefs are, in fact, different from what or fundamental beliefs
are. We have no recourse. There’s not a whit of a chance that the Congress
will overturn any decision that the Supreme Court comes down within the Weber case. And unless this alternative method of amending
the Constitution is adopted, we will continue to live under that kind of what I consider
inanely nondemocratic system. It is just foolish to sit, wringing one’s
hands, wondering what the Supreme Court is going to tell us, our fundamental Constitution
requires on an issue such as this. And that’s what we’re condemned with unless
Gerry you can screw up your courage and say, “Let’s throw the dice.” John Charles Daly: So this, you’re really is what… Gerald Gunther: Only if you can guarantee… Walter Berns: How desperate our condition is,
that’s really the situation. Gerald Gunther: Only if you can guarantee I’ll
be a delegate. I’ve always wanted to be James Madison and
I’m ineligible to be president, as is Paul. John Charles Daly: That opens up all kinds of questions. Who will be the delegates? Who will pay them? They were not paid any cents in 1787 and they
were reimbursed by their particular states. The constitutional convention itself passed
a resolution calling upon the Congress, at that time the Continental Congress, to pay
the officers of the convention, Mr. Jackson, who was the secretary, and I presume they
also included those sentries who prevented the people from interrupting the procedures
of the convention. But who will pay? And will television be there in 1984, a year
I choose by random? Gerald Gunther: That is, perhaps, where we can
get the financing for it. Antonin Scalia: I’m sure the Congress would
be happy to pass an equivalent to the Federal Election Campaign Law. You can have PACs, you know, contributions
from PACs and campaign limitations. It’ll be beautiful. Walter Berns: Yeah. But quite seriously, you know, if you consider
the situation that prevailed in 1787 when these people did what I supposed everybody
in this room knows they did in order to promote the atmosphere of a very solemn convention,
a very deliberative convention, keeping, of course, the press out to say nothing of the
modern means of the press out. Having the cobblestones around the hall covered
with inches of dirt, who paid for that I don’t know. John Charles Daly: The cobbles was necessary. Walter Berns: Yeah. Gerald Gunther: It was from the junkyard after
all. Walter Berns: Covered with dirt in order to
muffle the sounds of the horses’ hoofs and the wagon wheels on the cobblestones in order
to promote calm and sensible deliberation and so forth, everything being done in order
to allow these particular people who truly were an extraordinary body of men, to deliberate
and to decide upon a proposed Constitution. It had no validity, of course, until it came
out of the people in the ratification but can we possibly reproduce this? With Jefferson, I tend to believe from the
end of this war, and it’s a sobering thing to me whilst he was talking about the Revolutionary
War, “We shall be going downhill.” And… Antonin Scalia: Walter, I have two responses
to that. One is, we won’t get Madison and Hamilton
or…the caliber of people will not match them. But, on the other hand, they will be people
with 200 years’ worth of experience in the existing Constitution to look at. Now, you know, you trade a little bit of smarts
for a little bit of experience, so I think it’s likely to come out…it’s likely to come
out close to as well. And the second point I want to make and this
goes to the risk question. It isn’t though we have had a, you know, sacrosanct,
untouched Constitution. The Constitution has been changed, whether
we have liked it or not over the last 200 years, and not merely by the ratification
process. Many of the decisions of the Supreme Court
have made fundamental alterations which we’ve never had any occasions to say we like or
we don’t like. So it isn’t a matter of whether we leave the
Constitution untouched, but whether we, in a sense, prevent somebody else from touching
it in a way that we don’t want. John Charles Daly: Professor Bator? Paul Bator: The last point made that the
Supreme Court has made controversial decisions reminds me that on this issue of whether there
should be judicial review that is, whether Professor Berns is right that the Supreme
Court should step in and itself resolve these ambiguities and uncertainties as to the meaning
of Article V. One reason I think that we would be better off if the Supreme Court stayed
out of this and kept to its decision that these are all political issues and non-justiciable,
it’s really one of the few areas where it is still the case that the Supreme Court has
said that it will actually stay out of something. Walter Berns: Treasure that precedent. Paul Bator: One thing that council is keeping
to that is that the Supreme Court, and its decisions, may be protagonists in this drama. That is the intransigent central authority
that may be in the process of being resisted in a given case is an interpretation of the
Constitution given by the Supreme Court. That happens not to be the case of the balanced
budget amendment. And I think it’s very troublesome to think
of the Court as being the final arbiters of the powers of a convention which is called
in response to a feeling that the Court has given us a Constitution that we don’t like. So, on the whole, I think that by far the
happier prospect and not impossible prospect is that with a certain constitutional spirit
of trying to work one’s way through these ambiguities that no litigation will be necessary. John Charles Daly: With your permission I will consider
we have put down a very broad base for what should be an interesting question and answer
session. So let us go to that question and answer session
now. Yes, sir? Don: My name is Don Bandler and I’m with the
Carnegie Endowment. My question is first for Professor Scalia
and then to the panel. You expressed some doubt about whether the
American polity in its normal institutions would be able to handle and contain the political
passions of the American people. And, yet, it seems to me that when the time
where there’s increasing impact and power of single-issue lobbies, you also alluded
to that, we recently celebrated the 25th anniversary of Brown v. Board of Education. We got through the Vietnam War with some stretching
but no fundamental or constitutional changes in institutions. What is it that’s so special, so extraordinary
about the issues that you think would be good for constitutional conventions, the budget
issue, abortion, that requires this extraordinary remedy? Antonin Scalia: I said I listed first among
the things that I would like to have considered as structural issues at the federal level. I don’t have a lack of trust in the American
people. I mean, you know, I’m the one up here who
is least terrified of a convention. Yeah, we’ve come a long way. We’ve gotten over a lot of problems. But the fact remains that there is a widespread,
deep feeling of powerlessness in the country. One sees it on every side with respect to
many issues, not just the budget issues. The people do not feel that their wishes are
observed. They’re heard but they’re not observed, particularly
at the federal level. Now, the Congress has come up with a lot of
palliatives for this problem among which I was on a panel a few days ago discussing the
legislative veto, for example, which to my mind doesn’t solve the problem at all. The basic problem is simply that the Congress
has become professionalized. It has an interest much higher than ever existed
before in remaining in office. It has a bureaucracy that is serving it. It is much more subject to the power of individualized
pressure groups as opposed to the unorganized feelings of the majority of the citizens. All of these reasons have created this feeling
which is real and which I think has a proper basis of powerlessness. One remedy for that, the one specifically
provided in the Constitution is this 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. 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. John Charles Daly: Anybody else wish to go to this
question? Gerald Gunther: Well, that I can’t have a say
that that is part of a concern about it. Try it once and we’ll blast the way for a
lot of other single issues to come along. Sure, if there is that thoughtful widespread
concern about that in the country, 15 conventions on 15 issues are not a horror. On the other hand, I know groups who are just
waiting in the wings for hoping that the balanced budget issue in its narrowest form is called
for convention so they can present their narrow proposals. Now, what’s wrong with that is that in terms
of the solemnity and seriousness of the process there is a trivializing that begins to set
in that way. I mean, sure, if they limit it to the kind
of issues, some of the kinds of issues, maybe some of the kind of issues you would want
to present, Nino, fine. But there is, together with the benefit of
giving reality to this alternative route, the risk of un-seriousness, un-solemn, trivial
changes. John Charles Daly: Prof. Bator? Paul Bator: Although it’s been kind of fun
to careen along on Prof. Scalia’s bandwagon for quite a long time, but I just… Antonin Scalia: You’re getting off. I sense it. I sense it. It’s too bad, Paul. Paul Bator: I’m not getting off, I just fell
off. Antonin Scalia: Halleluiah. Prof. Bator: Because I do think that really
we ought to have a constitutional convention only if there are before us proposals which
we think are wise proposals. And just to have a constitutional convention
sort of to prove the point that we can do it and because we feel powerless and not really
to have any kind of considered issue framing and addressing of specific proposals and worrying
about whether this is a good amendment. That strikes me as slightly crazy. John Charles Daly: I’m glad, Paul, if you consider
it and kept it moderate. Antonin Scalia: I wish you would say that without
pausing. You know, when I say crazy, but what is the
pause and then saying slightly you’re searching for the right word. Prof Bator: You know, the bottom line for
me has been that the simple reason I’m against the constitutional convention is because I
haven’t been persuaded that the balanced budget proposal or the various alternatives so far
proposed would be a wise thing for us to adopt. And that realty is I think the issues are
substantive. I keep fighting for keeping the…that is
I’m with Nino in saying this is a terribly important structural feature which protects
our liberties, this Article V and that I really believe it, but then let’s use it for some
purpose that strikes us as a wise constitutional purpose. Antonin Scalia: May I rehabilitate myself? Maybe reach down a hand to pull Paul back
up on the bandwagon? When I say I don’t much care what it’s about,
I mean among various respectable issues for a constitutional convention, I am relatively
neutral as to which of those goes to the first top. I think it’s much more important that the
process be used for one of these important issue that concerns the American people, then
it is which one of those issues or then it is whether the convention might get into something
else. Sure, I wouldn’t want a convention for some
silly purpose, of course, not. But I think there are a lot of serious purposes
around, a lot of matters that profoundly concern the American people and as to which they can
have any voice. I really want to see the process used responsibly
on a serious issue so that the shibboleth, the Richard Rovere nonsense about, you know,
the end of the world is coming, can be put to rest and we can learn how to use the process
responsibly in the future. John Charles Daly: Next question please? Austin: My name is Austin Ranney, the American
Enterprise Institute. Let me begin by saying that I’m amazed that
in this discussion we’ve heard all sorts of comments about uncharted voyages into uncharted
seas, no experience, nobody knows, we’re just guessing. The fact is we’ve had more than 200 constitutional
conventions in this country since its origin. Now, to be sure, all but one have taken place
at the state level, and you may say, “Well, that doesn’t really matter and it is no analogy,
no experience, we got to look to.” It strikes me though that perhaps there is
some experience there, and if there is I would like to know what, if anything you think that
tells us about what might happen nationally. Also, I would like to say, and this my specific
question that I’m addressing to both professors, Gunther and Scalia, that really everything
that you said about really horrible things happening that might happen of the Rovere
variety or marvelous things that might happen of the Scalia variety, depend a good deal
upon the kind of people who get elected to the convention. Now, one thing we do know from this so far
unmentioned state experience is that elections of delegates to state constitutional conventions
have very low turnouts, 15, 16, 18 percent. Now, let’s say that in the national election
we have a huge turnout, 22, 23, 24 percent. Remember, we turnout barely half of the elected
even for a presidential election, now about a third for congressional elections. It’s extremely unlikely that we would have
more than 20 or 25 percent of the voters out. And I would like to know from both, Gerry
Gunther, Nino Scalia, what kind of people they think on a low turnout would be elected
and what do they think those people would do the good things they would like to see
or the bad things they fear. Gerald Gunther: It seems this is likely to
be not a continuing process. It’s a one-shot election that there’ll be
a competition among issues, it is as likely that he people who want to ban nuclear power
and who want to have new establishment of minority rights and new responsibilities of
the federal government and want to mandate health insurance or the people you wouldn’t
like be though would come along. And I think it is entirely foolhardy to make
one’s guesses in this very risk-prone business on the basis of who is likely to be elected
in a set of elections which will be simply elections of delegates to a constitution convention
six months or a year, two years from now. Walter Berns: It does depend I think to some
extent on the method of election. If the delegates from a particular state are
to be elected at large, then one can anticipate one thing probably. If we follow the provision of the various,
say the Helms Bill, and so forth, it’s not likely to be that way. It’s a kind of single-member constituency
business and then I suppose if we will turn on various single-issue groups proposing candidates,
and some single-issue groups pro-lifers winning in one constituency and I can’t say anti-lifers
winning in another constituency and that, of course, is not the sort of constitutional
convention that one would like to contemplate. If the convention itself is to be a deliberative
convention, then these various delegates may not be bound by their instructions from the
states or something but they’ll be bound by their instructions from their particular groups. That’s a reason to be apprehensive, Nino. Antonin Scalia: Well, you know, you can make
the same arguments about the next congressional election. What kind of people would be elected to the
Congress? The same election… Gerald Gunther: But this is well, you know,
this is more important. Antonin Scalia: Whenever you go for election
you can…it’s another one of the horrible that’s strutted forward. I do agree with one thing that the kind of
person, maybe I’m not agreeing with it, I’m saying it. I’ll say it and then agree with it. The kind of person who is elected undoubtedly
will depend, to some extent, upon what it is thought the convention will deal with,
and that’s one reason that I share Prof. Gunther’s concern about the process which makes it clear
going in, what the convention is going to deal with. If it is just going to deal with a single
amendment, let’s say it’s the financial responsibility issue, I think you might expect indeed some
economists, as well as political scientists and lawyers, to be elected. On the other hand, if it is going to be a
much broader convention, if it is to get into other issues, I think the people would probably
elect quite different people as their representatives. And I don’t think that they’re stupid as one
makes out and they’re going to elect somebody that cannot do an adequate job simply because,
on one particular issue, if that is not the only issue up, they happen to agree with them. If that is the only issue up then what’s wrong
with it? John Charles Daly: Well, beyond offering myself as
a candidate for or post as a delegate providing either the states or the federal government
provide some emolument this concludes another Public Policy Forum presented by the American
Enterprise Institute for Public Policy Research. On behalf of AEI, our hearty thanks to the
distinguished and expert panelists: Professor Walter Berns, Professor Gerald Gunther, Professor
Paul M. Bator, and Professor Antonin Scalia, and also our thanks to our guests and experts
in the audience for their participation. Peter Hackes: This Public Policy Forum on a constitutional
convention has been presented by the American Enterprise Institute. It has brought to you the views of four experts
in the field. It is the aim of AEI to illuminate important
issues of the day by presenting many viewpoints in the hope that by so doing those who wish
to learn to about the decision-making process will benefit from such a free exchange of
informed and enlightened opinion. I’m Peter Hackes in Washington. Announcer: This Public Policy Forum series
is created and supplied to the station as a public service by the American Enterprise
Institute, Washington, DC. For a transcript of this program, send $3.75
to the American Enterprise Institute, 1150 17th Street, NW, Washington, DC 20036.

6 comments on “A constitutional convention: How well would it work? (1979) | ARCHIVES

  1. Thank you for publishing these archives. They're a wonderful glimpse into history that can be rare to find and to me, at least, are quite valuable.

  2. This would have been far more interesting if our 27th Amendment (most recent) took longer than 90 days for the courts, at the behest of congress, to void altogether. the system is corrupt. No amendment will work because the courts will just undermine it.

  3. I put together some of Scalia's quotes from this video, and the full context of the quotes some use to claim he changed his mind later (he didn't). You can see it here: wolf-pac.com/scalia I also made one for Gunther, based on his comments in this video, which can be seen at wolf-pac.com/gunther. I may do the other two at some point, but they aren't high priorities.

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