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Scalia Probably Favored An Amendment Convention — But Does It Matter?

US Supreme Court Justice Scalia sits in the audience at a National Italian American Foundation event in WashingtonU.S. Supreme Court Justice Antonin Scalia sits in the audience at a National Italian American Foundation event in Washington, in this file photo taken October 20, 2006. REUTERS/Jonathan Ernst/Files

A majority of state legislatures have voted to trigger the U.S. Constitution’s most important procedure for reforming the federal government. This is the gathering that Article V of the Constitution calls “a convention for proposing amendments”—more popularly known as a “convention of states.”

Advocates of a convention of states rely on a supportive statement made by the late Supreme Court Justice Antonin Scalia in 1979, when he was still a law professor. Opponents counter with a 2014 statement they claim contradicts his earlier one.

Was Scalia inconsistent? Did he change his mind after he became part of the government? Or, can these two statements be reconciled? The answer is: They probably can be reconciled—and in a way helpful to those supporting a convention.

But another question is: Should we give much weight to either of these statements? The answer to that one is, “Probably not.”

In 1979, when supporting a convention, Scalia argued that it could be limited in scope. The only problem with his statement was that he showed limited understanding of the institution when he referred to it as a “constitutional convention”—something it clearly is not.

A constitutional convention is an assembly held to produce an entirely new document. A convention for proposing amendments, on the other hand, merely suggests one or more amendments. Earlier generations of Americans understood this, but during the 20th century, the two terms became confused. When Scalia spoke in 1979, that confusion had not yet been cleared up.

In his 2014 interview, Scalia said he opposed a “constitutional convention.” This time, however, he may have been using the phrase correctly. If you watch the 2014 video, you can see that the context suggests a broad general rewrite, rather than merely an amendment or two.

It is not hard to figure out why Scalia’s usage may have changed. Shortly before 2014, seven articles were published in law journals correcting the confusion between the two kinds of conventions. One of those articles appeared in the Harvard Journal of Law and Public Policy, a magazine with which Scalia had a long-standing connection.

Moreover, I authored five of those seven, including the one published by the Harvard Journal, and there is good evidence that Scalia was familiar with my work. In 2008, our articles (on other subjects) appeared together in the same issue of the Harvard Journal. Later that year, Scalia sent me a handwritten letter inviting me to visit him when I came to Washington, DC. I never took him up on his invitation, but in 2014, he cited still another of my Harvard Journal articles three times in a Supreme Court opinion.

It is likely, therefore, that by 2014 Scalia knew that a convention for proposing amendments is not a constitutional convention, and that he was opposing a general rewrite, not the amendments procedure.

But does all of this really matter? Probably not.

Scalia is a revered figure, and rightly so. He was learned, eloquent, principled, and courageous. He also researched and published on many subjects, but Article V law was not one of them. And he seems never to have decided a case involving Article V. When Supreme Court justices, like other people, make statements on topics they have not studied, their views may not be well grounded.

In this respect, Scalia may have been in the same position as Chief Justice Warren Burger and Justice Arthur Goldberg, whose uninformed comments sometimes are trotted out by convention opponents. Two other modern justices—William Rehnquist and John Paul Stevens—did preside over important Article V cases, but neither opined on whether we should hold a convention.

The Constitution’s amendments process is not taught in law school and not widely understood. Despite his brilliance and wisdom, there is no reason to believe that Scalia was an expert in Article V.

Robert G. Natelson (think@heartland.org) a former constitutional law professor, is widely conceded to be the country’s leading active scholar on the Constitution’s amendment process. He is senior fellow in constitutional jurisprudence at The Heartland Institute and director of the Article V Information Center in Denver.

Robert Natelson
the authorRobert Natelson
Robert G. “Rob” Natelson is widely acknowledged to be the country’s leading scholar on the Constitution's amendment procedure, and among the leaders on several other topics. He is the author of The Original Constitution: What It Actually Said and Meant (CreateSpace Independent Publishing Platform, second edition, 2010), a Goldwater Institute Senior Fellow as well as a Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He served as Professor of Law at the University of Montana for a quarter of a century. He is best known for his studies of the Constitution’s original understanding, and for bringing formerly neglected sources of evidence to the attention of constitutional scholars. Natelson has been cited 16 times in U.S. Supreme Court decisions since 2013. Parts of Chief Justice Roberts’ 2012 opinion on the “Obamacare” health care law closely tracked his original research on the Necessary and Proper Clause. His academic publications are almost too numerous to list. In addition to his articles on the U.S. Constitution, he created the first online guide to “originalist” research (now partly duplicated here); created the database the Documentary History of the Ratification of the Montana Constitution; and in conjunction with his eldest daughter Rebecca, edited the first complete Internet versions of the Emperor Justinian's great Roman law collection (in Latin).

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