By Jon Dougherty
Conservatives knew that when U.S. Supreme Court Justice Antonin Scalia passed away before his time in February 2016, the high court lost its best constitutional originalist, interpreter, and intellectual to ever sit on federal bench.
Naturally, Barack Obama wanted to replace Scalia with a constitutional lightweight and Left-wing judicial activist, Judge Merrick Garland, because the Democratic Left hates the Constitution as written; it prevents them from implementing authoritarian policies that would deprive Americans of many of our rights, liberties, and freedoms.
But thanks to Senate Majority Leader Mitch McConnell (R-Ky.), the former president was denied the opportunity to shift the high court in a direction that would have led to further deterioration of our founding document, not the preservation of it.
POTUS Donald Trump has done much better with the appointments of Justices Neil Gorsuch and Brent Kavanaugh, both of whom are much closer to Scalia’s originalist interpretations of the Constitution. But to prove what a profound loss the 1986 Reagan appointee was for our country and the preservation of our government as founded, we bring you Scalia himself — 40-odd years ago, when he warned then what political, cultural, and societal dangers our country would face in the future.
During a forum in 1979, Scalia provided one of the best summations available of the second way, under the Constitution, that our founding document can be amended, the genius of it, and why the founders adopted it.
You may recall that Article V provides instruction as to how the Constitution can be amended. There are two ways, and only one of them has ever been tried: Two-thirds of each chamber of Congress passes a new amendment then sends it out to the states, where three-quarters (37) must ratify it in order for it to take effect.
The second way has never been tried, but it’s this second method that Scalia masterfully addresses and explains — and in doing so, points out why it is a method that would come in handy today since Congress seems incapable of addressing some of our most pressing issues.
If two-thirds of state legislatures petitioned Congress for a new convention of states, then Congress is constitutionally bound to call one. And during the convention new amendments can be proposed — amendments that would be pre-determined ahead of the convention. Any new amendments proposed via convention would face the same 38-state ratification requirement.
The forum in which Scalia spoke was sponsored by the American Enterprise Institute. It was called, “A Constitutional Convention: How Well Would It Work?” Scalia, then a law professor at the University of Chicago, was one of four speakers. The moderator was John Charles Daly of ABC News (and “What’s My Line?” fame).
During his responses, Scalia proclaimed that he was “the one here who is least terrified of a convention” because he didn’t “have a lack of trust in the American people.”
The future justice said that “a widespread and deep feeling of powerlessness in the country is apparent with respect to many issues, not just the budget issue. The people do not feel that their wishes are observed. They are heard but they are not heeded, particularly at the federal level.
“The basic problem is simply that the Congress has become professionalized,” he said. “Its members have a greater interest than ever before in remaining in office; and it is served by a bureaucracy and is much more subject to the power of individualized pressure groups than to the unorganized feelings of the majority of the citizens.”
Scalia observed that just by utilizing the Article V convention process, states could spur changes at the congressional and bureaucratic levels.
“One remedy for that, the one specifically provided for in the Constitution, is this amendment process which bypasses the Congress. I would like to see that amendment process used — just having it used once will exert an enormous influence on both the Congress and the Supreme Court,” he said.
That’s because “Congress isn’t willing to give attention to the real issues people are concerned with,” he continued. “Instead, they’re concerned with their own electability. Constitutional amendments are difficult and take time and coalition-building. Why bother with that when you can merely promise it?”
One such amendment that was popular back then was constitutionally requiring Congress to pass a balanced budget.
Scalia said it was “something members of Congress would never consider because, well, they like spending your money. Article V provides a way for Americans to have their voices heard.”
The Convention of States organization is pushing for an Article V convention to address a range of issues including a balanced budget. The group says that fears over a “runaway convention” are unfounded and unrealistic because, again, any new amendment would have to be approved by three-quarters of all states.
“Our convention would only allow the states to discuss amendments that, ‘limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials,'” the group notes on its website.
Talk host, constitutional expert, and legal eagle Mark Levin published a book in August 2013 called “The Liberty Amendments” in which he explains in detail the Convention of States process, how it couldn’t be used to subvert the Bill of Rights, and why — like Scalia believed — it would actually serve as a huge wake-up call for Congress and the American political establishment. He also offers new amendments that states should consider such as repealing the 17th Amendment (which repealed the provision in the Constitution requiring state legislatures to chose the state’s two U.S. senators and called for the election of senators by popular vote); term limits; restoring the judiciary to its proper role, limiting the federal bureaucracy; and more.
Watch Scalia explain it (per Conservative Tribune):
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