Flashback from Antonin Scalia in 1979: “A Constitutional Convention: How Well Would It Work”

February 15th, 2016

On May 23, 1979, the American Enterprise Institute held a discussion on the constitutional convention, with four legal luminaries: Paul Bator, Walter Berns, Gerald Gunther, and Antonin Scalia. Today, the American Enterprise Institute has posted a transcript of the proceedings online. Kudos to Adam White who (somehow) re-discovered it last week, and helped put this into motion. There is so much wisdom here, but I will draw attention to one passage where then-Professor Scalia addresses concerns about a runaway convention:

PROFESSOR SCALIA: I just want to make sure I understand Professor Gunther’s view on this matter. I understand your process objection: that the states, in your view, have made these calls without understanding what they entail. Now, suppose they do understand what is entailed-the risk of having a runaway convention. Do you say they should do it, or not?

PROFESSOR GUNTHER: I have no constitutional or process objection for a call with full knowledge of the risks. I suspect that our views differ as to whether the risks are worthwhile. But I have no constitutional objection if the states under­ stand and accept my view of what a convention may do, and nevertheless want to go ahead.

PROFESSOR SCALIA: I suspect that you might not feel so strongly about your process objection if you felt more strongly about whether they should go ahead or not. To some extent, the debate boils down to how pleased or dis­pleased one is about what is likely to come out of a conven­tion; how necessary or unnecessary one thinks the product of the convention happens to be.

I hope to study this more closely, in the wake of Justice Scalia’s untimely passing.