Article V ping.
Posted on 03/16/2025 5:58:31 AM PDT by Twotone
Today would have been legendary Supreme Court Justice Antonin Scalia’s 89th birthday. If you’ve recently attended an Article V legislative hearing, you may have heard Article V convention opponents invoking Scalia’s name, claiming he would have opposed such a convention. This argument seems puzzling, especially given Scalia’s famed support for the Constitution. As is often the case, however, our opponents have distorted the facts to fit their narrative.
Scalia was well known for his staunch originalism and widely respected for his faithful interpretation of the Constitution. The former law professor was deeply knowledgeable about the Founders’ original intent for our system of governance and offered many unique insights on constitutional topics — including the Article V convention for proposing amendments.
Uncovered footage reveals that Scalia, speaking on a panel about Article V in 1979, argued for using the convention process to address “structural issues at the federal level.”
“There is a widespread, deep feeling of powerlessness in this country,” he mourned more than three decades before COS was founded. “One sees it on every side with respect to many issues, not just the budget issues. The people do not feel their wishes are observed — they’re heard, but not observed, particularly at the federal level.”
“The basic problem,” he diagnosed, “is 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 … of powerlessness.”
The Supreme Court, he added, wasn’t helping. He censured the Court for its unapologetic judicial activism, contending it wasn’t healthy for a nation to depend on an unelected body of judges to “decide our fundamental beliefs.” The people, he fretted, had no recourse — apart from Article V — to overturn undesirable or faulty court rulings, which only exacerbated the problem of helplessness.
Fortunately, the Founders provided a remedy: “this amendment process which bypasses the Congress.”
“I would like to see that amendment process used just once at first,” Scalia said. “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.”
As Scalia postulated, the federal government’s disregard for the American people has left us feeling powerless. No matter who we vote for, the government keeps growing, and the citizen keeps getting smaller. Thanks to the Founders, however, we still have a solution: the Article V convention, which, as Scalia pointed out, will force Congress and the Supreme Court to “behave much better.”
Nevertheless, despite the pressing need for such a convention then and now, Scalia encountered many of the same opposing arguments COS supporters face today. His fellow panelists raised many exaggerated concerns about what might come out of the convention, which all members of the panel inaccurately called a constitutional convention.
One panelist “suggested that the convention method … might reinstate segregation and even slavery, throw out much or all of the Bill of Rights, eliminate the Fourteenth Amendment’s due process clause, 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?” he asked Scalia.
Notably, the question specifically pertains to an “unlimited convention.” In contrast, the convention COS has proposed would be limited, as members could only discuss amendments limiting the power and jurisdiction of the federal government, imposing fiscal restraints, and placing term limits on federal officials. Scalia reminded his questioner that his exaggerated misgivings about what a convention might enact could also emerge from Congress (which, unlike our proposed convention, is not limited) as Article V grants both Congress and the states the power to propose amendments.
“All those things are possible, I suppose, just as it is possible that the Congress tomorrow might pass a law abolishing social security as of the next day, or eliminating Christmas,” Scalia responded satirically. “Such things are possible, remotely possible. I have no fear that such extreme proposals would come out of [an Article V] convention. Surely, whether that risk is sufficient to cause anyone to be opposed to a … convention depends on how high we think the risk is and how necessary we think the convention is. If we thought the Congress were not necessary for any other purpose, the risk that it might abolish social security would probably be enough to tell its members to go home.”
“So, it really comes down to whether we think a … convention is necessary, he continued. “I think it is necessary for some purposes, and I am willing to accept what seems to me a minimal risk of intemperate action. The Founders inserted this alternative method 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.”
He also tackled another recurring argument against calling a convention: the belief that the Constitution was divinely inspired and, therefore, should remain untouched. As Scalia pointed out, “The Constitution has been changed, whether we have liked it or not, during the last 200 years, and not merely by the ratification process. Many of the decisions of the Supreme Court have made fundamental alterations without giving us any opportunity to say whether we liked them. So it is not a matter of whether we leave the Constitution untouched, but whether we prevent somebody else from touching it in a way that we don’t want.”
Regrettably, despite trusted constitutional authorities like Scalia dismissing the myths about an Article V convention for decades, opponents' fears stubbornly refuse to subside.
Our critics overlook several points in their arguments: even if a radical amendment somehow made it out of a convention (which is highly unlikely), it would still require ratification by 38 states — a nearly insurmountable hurdle that would effectively render any rogue amendment powerless. Moreover, they ignore the “fundamental alterations” that have already reshaped the Constitution to suit the whims of the corrupt federal government.
When all of these factors are considered, it becomes evident that calling an Article V convention carries not even a “minimal risk.” The process is completely safe and entirely necessary. As Scalia explained, the Founders knew the federal government might one day turn a deaf ear to the American people, and they gave us the convention for proposing amendments as a remedy. It’s high time we used it.
Scalia wasnt perfect
He mistakenly thought being a Supreme Court justice protected him and foolishly went alone to a remote location where the only other people were his political enemies.
I personally believe he was simply assasinated with the traditional pillow as historically done to royalty.
Believing the same, he trusted he lost. The bastards are good at assassination’s
It was a pity to lose Scalia, & it’s awful to think he was deliberately killed. I’m not sure I can accept that, but his death was certainly suspicious.
He was right on having an Article V Convention. Even $36 trillion in debt & we can’t get Republicans to codify the DOGE cuts. My own senator Crapo has a debt clock on his web page, as if he cared, but still did not support Rand Paul’s efforts to make cuts permanent. At some point we have to go around them.
Ladies and gentlemen, children of all ages, this is due to Federill debt, demands that are effected when the government goes to the bond auction to beg for money. This is how bankers enact their political preferences without public observation in return for accepting a lousy interest rate whilst sustaining an "acceptable" low inflation rate slowly robbing middle class weal.
Hence, none of that problem will be addressed unless we get our fiscal house in order and start paying it down.
Got it now?
I’ve not heard Scalia’s name since I last looked at Hillary’s body count.
Article V ping.
You’re exactly right, Mark. Additionally, as a former advocate for COS, I have abandoned that idea for now.
With the passing of Justice Scalia, there’s only one other person in America I would trust as a delegate, Justice Clarence Thomas and the process excludes him from going it alone.
With the exorbitant debt and the 50+ years of dumbing down our citizens, I think a COS in this era would be like opening Pandora’s Box while taking LSD.
It's worse than that I'm afraid. As you know, I have a few very simple and clear amendments in mind that would have far-reaching effects, particularly in the Supremacy Clause and the manner of Treaty construction and ratification. Yet none of those observations of Constitutional deficiencies are among Levin's "Liberty Amendments," this despite the fact that I have notified him of them.
IOW, I am not convinced our "pantheon" of conservative pundits and advocates could staff such a convention and produce salutary results. I keep trying, but so far, there isn't much "out there" to encourage.
You are apparently mistaken as to the authority of state delegates.
No. You’re naive. We’ve had this discussion before.
The latest effort is not doing as well as a previous effort: A Balanced Budget Amendment. It got so close, in fact, that Congress offered up a bogus alternative, the Gramm-Rudman Act. The ploy worked and the effort stalled.
If this effort could be restarted it is more likely to work than the current effort. Once that happens future Convention efforts will be easier.
Here are the states which have petitioned for a Balanced Budget Amendment : Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah and West Virginia. This represents 29 states.
Rescinded applications can be found for Delaware, Idaho, Oregon and Virginia. In particular, Delaware is included in lists prior to their rescission in 2016, but not after.
Wyoming and Wisconsin have made recent applications while Maryland, Nevada, New Mexico, and Colorado have recently rescinded their applications. This suggests a current total of 27 states, seven short of the required 34./
For a Convention of the States dedicated to a balanced budget amendment only, the count is 27 down, 7 to go.
I asked Grok how many states have a Balanced Budget Amendment application and it said 28.
For a Convention of the States dedicated to a balanced budget amendment only, the count is 28 down, 6 to go.
I agree and his death was a great loss.
Such evil is loose in the world.
All we can do is face it will courage and fight fight fight.
The states have submitted hundreds of applications.
Per our Constitution, Congress should call a convention, right?
Our Constitution uses the general term “application” without distinguishing between applications for a general convention and applications for a convention relating to a particular topic.
Although a state can give the reason for its submission, all of the applications act as valid applications for the purpose of establishing the two-thirds necessary for the calling of a convention for proposing amendment.
If that was true we should have had a COS by now. By tradition it needs to be a specific reason for the call.
https://foavc.org/01page/Articles/TABLE%20%20SUMMARIZING%20STATE%20APPLICATIONS%20FOR%20A%20CONVENTION%20TO%20PROPOSE%20AMENDMENTS.pdf
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