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

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

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.”

Scalia’s Earlier Statement About a Convention

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.

Scalia’s Later Statement

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.

Does All This Really Matter?

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.

This article originally appeared in the Daily Caller.

The Relationship Between the Declaration of Independence and the Constitution

The Relationship Between the Declaration of Independence and the Constitution

I’m sometimes asked about the relationship between the Declaration of Independence and the Constitution.

Their connection is not difficult to understand.

The Declaration is a statement based on natural law. Natural law consists of fundamental principles of justice and right. Monotheists see natural law as deriving from the Creator. Polytheists see it as deriving from the supreme deity or deities. Atheists who believe in natural law, such as the late philosopher/novelist Ayn Rand, view it as a collection of rules inherent in the way the universe works.

The Founders’ Version of Natural Law

The men who approved the Declaration were monotheists (“endowed by their Creator with certain unalienable rights”). Their version of natural law had been worked out and popularized by writers such as John Locke. The fundamental characteristics of that version were

  • people have equal dignity before God,
  • God grants people rights or powers, some of which are transferable (alienable) and others not transferable (inalienable or unalienable),
  • government is erected primarily to protect people’s rights,
  • government is a fiduciary enterprise, subject to rules of public trust, and
  • the people may alter government when it does not serve their purposes.

The Constitution, on the other hand, is a statement of positive law. Positive law consists of rules enforceable by governmental authority. There are many positive laws, but the Constitution was designed to be the supreme positive law.

The Founders believed that in a perfect world, positive law would be the same as natural law. In an imperfect world that is impossible, but we should try to make positive law approximate natural law as closely as feasible.

The Founders understood that people would (and should) accept some variations from the ideal. (“[M]ankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed”). At some point, though, the gap between natural and positive law becomes too great to bear. This may be true for a particular law or for a set of laws—or even for an entire political system. In modern language we say the defective law or system “loses legitimacy.”

The Declaration served several purposes. First, it stated a natural law ideal (“We hold these truths to be self-evident. . . .”). Second, it showed how British legal practice varied from this ideal. Third, it explained that the variation had become too great to bear, justifying Americans in proclaiming their independence and thereby throwing Americans and their “British brethren” into a “state of nature” with each other. (Americans were not, however, thrown in a state of nature with their fellow Americans; most of their local ordinances continued to enjoy legitimacy.)

In other words, the Declaration argued that, as to Americans, the positive law of the British Empire had veered so far away from natural law that it no longer legitimately governed the colonies. It needed to be replaced. A similar event happened in our own time, when the peoples of eastern and central Europe overthrew their Communist regimes.

Particular laws or sets of laws may become illegitimate without the entire system being deemed so. For example, the 1960s civil rights advocates rejected laws mandating segregation, but only a few extremists in the movement rejected the American constitutional system. Similarly, a constitutional originalist or pro-life advocate today may well reject the legitimacy of the Supreme Court’s holding in Roe v. Wade without repudiating the entire political structure.

One common response to the illegitimacy of particular laws within a legitimate system is civil disobedience.

The Role of the Constitution

After Independence, the Declaration remained as a statement of America’s natural law ideals. The Constitution was adopted to move American positive law closer to those ideals. The Constitution did this in at least two principal ways:

  • by substantive rules, and
  • by imposing procedures designed to produce better results.

One instance of a substantive rule is the Contracts Clause of Article I, Section 10. The framers designed it to prevent states from using a common method of cheating people. The Contracts Clause did not apply to the federal government, but the framers subjected Congress to procedural mechanisms, like the president’s veto, that made it more difficult for Congress to pass laws cheating people.

The Constitution and Slavery

Although the Constitution was designed to move America closer to natural law principles, it was not a single-minded dash toward Utopia. The Founders could not produce a Constitution that approximated natural law in every way. For example, most Founders recognized that slavery was against natural law. But given the constraints of the time, tolerating slavery was the better of two bad choices. If the Constitution had banned slavery, it would not have met the nine-state threshold necessary for ratification. The result would have been a fragmented country. This likely would led to civil wars that lasted not just a few years (as our actual Civil War did), but decade after decade. That would have resulted in natural law violations greater even than slavery.

The Constitution Should Not Be Distorted to Achieve Natural Law Ends

Some people, including many liberals and libertarians, strain the Constitution to achieve what they see as its proper ends. They overlook the fact that the Constitution is a document of positive rather than natural law and that many of its provisions arise from prudential balancing among values. Moreover, as the supreme law of the land, the Constitution includes not only the Founders’ language, but their principles of interpretation. Their central principle of interpretation was to construe the document as the ratifiers understood it—not as the interpreter would like it to be.

The way to conform the Constitution more closely to natural law is not to pretend it means what it does not mean. The way to conform the Constitution more closely to natural law is to duly amend it.

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

Since Election Day, the stock market has soared. The benchmark Standard and Poor’s 500 index, which reflects the stock price of larger companies, has risen by more than 14 percent. The NASDAQ Composite, which measures a wider sample of stocks, has jumped more than 16 percent.

These stunning results were achieved in less than 100 days. Everyone knows the reason: Investors have laid out hundreds of billions of dollars with the expectation of a more-free-market-oriented Republican president and Congress.

By “investors,” I don’t mean the rich. The vast majority of investments are made on behalf of people of modest means. A single pension fund such as TIAA, which represents public employees, handles more than 10 times the wealth of the richest man in the world (Bill Gates).

This stock market rise is a huge vote of confidence in free-market policies, but it is also a warning. Specifically, it is a warning to those on the left who have abandoned Americans’ post-election honeymoon tradition in an effort to trigger what Mark Levin calls a “silent coup.” If the left is successful in neutering Trump or the GOP Congress, we can expect investors to flee the markets in droves. The result could be economic collapse.

The Super-Precedent Theory

When considering whether to alter direction, it is always wise to consider the extent to which people have relied on current policy. In other contexts, the left purports to understand this. Illustrative is a legal theory liberal academics promote called “super-precedent.”

The theory of super-precedent is the Supreme Court should not overrule certain liberal constitutional cases, even if they were decided incorrectly. This is because people have relied on those cases. Abandoning them would be disruptive.

Promoters of the “super-precedent” theory apply it to cases such as Roe v. Wade, the 1973 decision that upended the abortion laws of all 50 states. They also apply it to the court’s 20th-century constitutional holdings that, on specious constitutional grounds, eroded the Constitution’s limits on federal economic regulation.

Yet few, if any, Supreme Court decisions occasion as much reliance as the results of a national election. If Roe v. Wade were overturned tomorrow, no abortions would be undone. In all probability, no person currently pregnant would be denied an abortion. This is because it would take months, perhaps years, for state legal systems to respond to the change. At most, reversal of Roe v. Wade would affect future pregnancy planning in some states.

Supreme Court cases allowing excessive federal regulation have engendered more reliance than Roe v. Wade, but the amount of reliance can be overstated. In Wickard v. Filburn (1942), the Court misconstrued two clauses of the Constitution to permit direct federal regulation of agriculture. If the Court were to overturn Wickard, it would re-establish some constitutional limits on federal regulation—and many business plans would have to change.


How the Supreme Court Can Minimize Damage When Properly Overturning Erroneous “Super-Precedents”

But the Court has ways to contain or eliminate the damage. One is to phase in the change. In fact, this is precisely what the justices did when they reversed Plessy v. Ferguson (1896), the long-standing precedent that authorized state-sponsored racial segregation.

If, on the other hand, the left is successful in delegitimizing the GOP president and Congress, there would be no way to contain the damage. The free-market policies investors were promised and relied upon would not be forthcoming after all. Investors would flee the stock market in panic. Countless smaller business and personal decisions not recorded in the stock market would be unhinged as well.

No doubt some on the left would be perverse enough to welcome this result. But those who mean well should realize they are playing a very dangerous game. For the good of the country, it’s time for them to stop being spoilsports and accept the election results.

Note: This article was originally published at the RedState blog.

Conservatives Should Abandon the Filibuster

Conservatives Should Abandon the Filibuster

Conservatives traditionally have supported the Senate filibuster because, supposedly, it puts the brakes on expansion of government. I’ve long thought conservatives should reconsider. With Democrats planning to filibuster President Trump’s nominee for the Supreme Court, a good time to reconsider is now.

That’s because history shows that, on balance, the filibuster doesn’t put the brakes on big government. It protects big government.

The Senate’s filibuster system lets a minority of Senators block legislative action by making long speeches (i.e., “filibustering”) on the floor.

The Senate adopted the filibuster in 1806. Its source is a Senate rule—not the Constitution.

The Filibuster Helps Assure a One-Way Ratchet to Bigger Government

Conservatives often favor super-majority requirements because they think it (1) stalls government action and (2) assures us that when government does act, its measures benefit a very broad segment of the public. But hard experience show that the filibuster has not restrained the growth of the federal government. Instead it has helped create a one-way ratchet whereby the federal government sometimes expands, sometimes remains constant, but never shrinks.

One reason appears to be a large, highly organized and permanent pro-government element in national politics. It’s like an indigestible lump in the body politic, always there no matter who wins the election. This lump includes the mainstream media, the education establishment, the bureaucracy, powerful lobbying groups like the AARP, and a paid, professional “protesting class” that calls itself “Occupy Wall Street” one day, then reinvents itself as “Black Lives Matter,” then morphs into the “Women’s March.” In practice, this permanent pro-government element amplifies the effect of liberal electoral victories while diluting the effect of conservative victories. As a result, in the U.S. Senate liberal majorities sometimes become super-majorities, while conservative majorities almost never do.

Another reason the filibuster is a one-way ratchet may derive from the different amount of respect conservatives and leftists have for rules. A very basic illustration comes from the different ways the two sides treat the laws against littering: When conservative “Tea Party” groups rallied a few years ago, they cleaned up their rally sites when the rally was over. By contrast, lefty groups like Occupy Wall Street and the Women’s March leave behind huge messes for the long-suffering sanitation workers to handle. Similarly, in national politics, conservative deference to rules induces them to respect liberal filibusters.

The Left Undercuts the Filibuster When Inconvenient

All too often, the respect is not reciprocated. Here are some historical examples:

* In 1917, the “progressive” Senate adopted Rule 22 at the request of President Woodrow Wilson to allow cloture for the first time—by a two thirds majority.

* In 1965, Senate Democrats enjoyed a 67-32 majority, which enabled them to override any filibuster possibility and enact Medicare and Medicaid—thereby rendering the federal government the dominant player in American health care.

* In 1975 a liberal Senate reduced the cloture margin to 60. Note that when Senate conservatives recovered their majority, they did not reverse this action.

* In 2007, a liberal Senate used a technique called “reconciliation” to override a filibuster threat and pass the College Affordability and Accountability Act. That measure assured greater federal control of higher education.

* In 2010, a liberal Senate did the same to adopt Obamacare.

* In Nov. 2013 a liberal Senate adopted the so-called “nuclear option” to abolish filibusters on presidential nominees. But they carefully excepted the Supreme Court from the change, so liberals still could filibuster against appointment of more originalist justices in the mold of Clarence Thomas and Antonin Scalia. This change was not reversed when the Republicans took control of the Senate in 2015.

Note how the filibuster rule was swept aside when it stood athwart a liberal majority’s wish to expand government. I was able to find no instances in which a Senate majority lifted the filibuster to reduce the size of government.

In some countries, the size of government has been reduced significantly in recent years. Illustrations include Margaret Thatcher’s Britain and Roger Douglas’ New Zealand. However, the parliamentary majorities accomplishing this were never super-majorities. Had the filibuster rule been in effect in those countries, both would still be languishing in socialist stagnation.

An earlier version of this article appeared in

How to Replace Justice Scalia on the Supreme Court

How to Replace Justice Scalia on the Supreme Court

President-Elect Trump says he wants to nominate a justice like the late Antonin Scalia to the U.S. Supreme Court. That means a justice who follows the judicial philosophy of “originalism.”

Justice Scalia

Originalism is the view that we should interpret the Constitution much as we interpret other legal documents—in accordance with the understanding of the people who adopted it. Until the mid-20th century almost every Supreme Court justice was an originalist. Almost every judge still is an originalist as to every kind of document except the Constitution.

During the 1940s President Franklin Roosevelt appointed a majority of justices who disregarded the traditional rules of judging. His “liberal” appointees allowed the federal government to smash through the limits the Constitution had placed on its power. In many cases, they pretended that the Constitution mandated their personal social views.

Some presidents have tried to return the Court to responsible judging by appointing originalists to the Supreme Court. Once on the Court, however, most have turned out not to be originalists at all. Several have proved to be fervent judicial “liberals.” By contrast, liberal appointees have invariably remained liberal.

There are a number of reasons for this asymmetry, including the perverse incentives prevailing in Washington, D.C. My own view is that we should adopt a constitutional amendment moving the Court to a more centralized location, such as Kansas City or Salt Lake.

In the interim, the president simply has to be very careful during the selection process. That means applying at least six selection criteria:

Rules for Selecting a Justice

First: A potential nominee for the Court has to be really smart, not just pretty smart. A mid-level college football player is pretty good at football compared to the general population, but wouldn’t cut it in the NFL. Similarly, a person with an IQ of, say, 125 is intelligent, but not intelligent enough to succeed in the overwhelming task of returning the Court to its constitutional roots. An object lesson is the career of former Chief Justice Warren Burger. President Nixon put him on the Court to lead it back toward originalism. Burger was no dummy, but he just didn’t have the intellectual firepower for the kind of job he faced.

Second: The candidate should have graduated from a law school other than Harvard or Yale. This rule conflicts with the first criterion to a certain extent because law school attendance has become so hierarchical that most aspiring law students smart enough get into Harvard or Yale choose to attend. But law schools mold legal minds. These two left-leaning, predominantly anti-originalist, institutions have had a near-lock on the Court of late. It’s time for some different perspectives.

Third: When a political candidate seeks my support by assuring me he’s conservative, I respond, “Anyone can say that and a lot of candidates have. Show me your scars!”

The point is that it is not enough for a potential Supreme Court nominee to say he or she is an originalist. He or she has to have waged legal war for the cause. The best proof is a paper trail of articles, court briefs, or judicial opinions arguing for originalist results.

Fourth: Good judges can come from practice, the academy, or the bench. On balance, though, bench experience is best—particularly the trial bench. In trial court, lawyers and judges learn about the real world. A candidate with experience in practice, academia, and on trial and appellate courts is best of all.

No More Coastal Candidates

Fifth: This next Supreme Court pick should come from the American heartland, not from the East or West Coasts. Since Sandra Day O’Connor of Arizona retired, the Court has been utterly dominated by New York, New Jersey, and California, and, of course, metro-D.C. We need more justices from states where agriculture is a principal activity or where the state’s economy is smothered by the heavy hand of federal land ownership. They will better understand why the Constitution limited the size and scope of the federal government.

Sixth: The candidate should not be too young. In recent years, presidents have tended to select young nominees in the hope they will serve many years on the Court and prolong the president’s legacy. But a president needs to consider that a younger person may be insufficiently tested. In my view, the ideal nominee is in his or her late 50s or early 60s.

This article first appeared in the American Spectator.