Where Chief Justice Burger Likely Got His Anti-Amendment Convention Views

americanthinker.com ^ | 3/20/15 | Rob Natelson

[cotton1706]

Opponents of the Constitution’s Article V convention method of proposing amendments tout three letters written in the 1980s by former Chief Justice Warren Burger. In those letters, Burger took a very hard line against any convention of states that might bypass Congress and propose corrective constitutional amendments.

I’ve previously explained one reason Burger may have been so adamant:Although appointed to the court by President Nixon as a “strict constructionist,” Burger proved to be a fairly activist judge. He famously voted for Roe v. Wade, the abortion decision that upended laws in all 50 states.

Thus, when Burger wrote his anti-Article V letters, he was protecting Roe v. Wade and his Court. At the time, there was a great deal of talk about using Article V to overrule Roe and other ventures into judicial activism.

But it seems that Burger was friendly with a man named William F. Swindler.

Swindler was a law professor at the College of William and Mary, which is located in Williamsburg, Virginia. Burger appointed Swindler to two official Supreme Court committees. Upon Swindler’s retirement, Burger wrote a glowing testimonial. Upon Swindler’s death, Burger eulogized him as “an analyst of history and a historian of the first rank.”

Swindler was a strong liberal, and he fiercely opposed the convention process of Article V -- particularly when conservative amendments were proposed. During the 20th century, many academics wrote attacking Article V, but Swindler’s assault was the most over-the-top I’ve seen.

[alstewartfan]

Very interesting. But this doesn’t excuse the activist nut Warren Burger, of course. Bob

[Vaquero]

I don’t trust lawyers and politicians of any party to have a constitutional convention. And as the left lies cheats and steals elections on a regular basis a constitutional convention will be a fun challenge for the Saul Alinsky crowd. And the do nothing republicans will just throw their hands up as they are professional losers.

Look before you leap.

[rellimpank]

—whenever the name of Warren Burger is mentioned , I recall that the real reason that Nixon appointed him was supposedly that “he looked like a chief justice should”——

[elcid1970]

Warren Burger once appeared on the cover of Parade magazine holding up a 1795 flintlock musket.

In the article Burger asserted that the Second Amendment applied only to those firearms in existence when the Constitution was ratified.

He said, “America, this is what you are allowed to own, period!!”

[nathanbedford]

Asserting that “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, he claimed that the convention procedure should be disregarded as “no longer of any effect.” Thus, Swindler suggested that if the requisite number of state applications was reached, Congress should simply ignore its duty to call a convention. Alternatively, Swindler wrote, Congress could gerrymander the convention and/or prescribe rules that would render its operation impossible. For example, he suggested that Congress mandate a rule that convention delegates were not permitted to propose any amendment unless they did so unanimously. He also argued that the courts should determine which states had permission to participate in the process and which states did not.

Those of us who have familiarized themselves with the materials provided by Publius are not at all surprised by the nature of the objections to the Article V amendment process.

Indeed, history has shown that Congress will avoid calling such a convention by simply ignoring the vote tally of the states or by citing some contrived objection. Certainly, Congress will act (or in this case more likely fail to act) to protect its powers which really means to protect its usurpations of the Constitution. Among those stratagems we expect Congress to employ include imposing restrictions on the nature of the convention and the identity of the delegates. Probably the gravest threat would be an attempt to impose a one man, one vote on the convention process which might find support in the courts.

In any event all this is thoroughly aired by Publius and by the materials he has so thoughtfully provided for us. We are not naïve but neither are we daunted.

[reg45]

Using the same logic - the only government welfare permitted would be those programs already in existence prior to 1795 - namely none.

[rellimpank]

—yep—I remember that article—it contained about as much misinformation as could be packed in as many words—straight from the lips of Burger—

[cotton1706]

A sixth legislative chamber just yesterday passed a convention of states resolution.

[elcid1970]

Opinionated jerks with judicial power can be dangerous to liberty.

[Lazamataz]

Warren Burger is described as a conservative in various references.

Yeah, right.

He was so conservative, he hated the Second Amendment and wanted it restricted to muskets. He was so conservative, he voted for forced busing for children to schools other than their natural neighborhood schools. He was so conservative, he voted for abortion. He was so conservative, he waited to retire at the right moment so Johnson could have his pick. for SCOTUS.

Warren Burger is the Barack Obama of the judicial world.

[stremba]

I can’t disagree with the content of what you posted, but surely you have the President who replaced Burger wrong. He was appointed by Nixon, so it’s not possible that Johnson named his replacement upon retirement. Burger was on the Supreme Court until 1986, meaning that Reagan nominated his replacement. I’m not sure what your last line in your post is referring to.

[Robert DeLong]

The Dishonorable Warren Earl Burger

[redfreedom]

I could not agree with you more, well stated!

A constitutional convention will give the left the opportunity to rewrite the most basic law of our nation exactly the way they want it and the GOP will just play dead for fear of being scolded by the media or losing their privileged status in the beltway.

The Constitution is like any other good law, you cannot rewrite it to get people to obey it, it needs to be enforced just as written.

[Publius]

[Publius]

It's not a constitutional convention. It's a convention for proposing amendments and nothing more. Here is the usual boilerplate I post to these threads for the uninformed.

***

The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.

Proposal:

There are two ways to propose an amendment to the Constitution.

• The Congressional Method requires the House and Senate to pass an amendment by a two-thirds majority.
• The Amendments Convention Method requires the legislatures of two-thirds of the states to apply to Congress to call a Convention for Proposing Amendments. The states may request a single-subject convention or a general convention open to all subjects. Once the two-thirds threshold is reached, Congress is required to set a time and place for the convention.

Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.

Disposal:

Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:

• State Legislature Method, or the
• State Ratifying Convention Method.

The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.

Ratification:

Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.

Forbidden Subjects:

Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.

Explicitly forbidden:

• No amendment may be added to the Constitution concerning slavery or capitation taxes until 1808. We’re past that deadline.
• No amendment may be added to the Constitution to change the principle of equal representation in the Senate unless every state deprived of that right approves. If California wants five senators, every state must have five senators. To permit violation of this principle, every state would have to ratify the amendment, not just three-fourths.

Implicitly forbidden:

• The Constitution of 1787 may not be abrogated and replaced with a new document. Article V only authorizes “a convention for proposing amendments to this Constitution”; therefore, the Constitution of 1787 is locked in place forever. Congress and an Amendments Convention have exactly the same Proposal power; therefore, neither Congress nor an Amendments Convention can start over. Both bodies can only propose amendments. To permit the drafting of a new constitution, this provision in Article V would first have to be repealed; it would be a two-step process.

I have two reference works for those interested.

The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.

Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers

The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.

Report of the ABA Special Constitutional Convention Study Committee

[PapaNew]

Whatever else Nixon was, it seemed he was a politician first who became addicted to power and prestige, this reason why he nominated Burger as an example. Nixon seemed relatively groundless and vision-less and he mocked those like Reagan who actually believed in something greater than politics (ie the meaning of America and freedom).

[PapaNew]

The feds don’t want to fix themselves and don’t want anyone else fixing them.

[Political Junkie Too]

Asserting that “only a federal agency (Congress, as provided by the Constitution) is competent to propose” amendments, he claimed that the convention procedure should be disregarded as “no longer of any effect.”

He might as well declare that the Supremacy clause is no longer in effect. He can't, though, because he needs it to justify everything else.

So Article V is either supreme law of the land, or nothing is.

-PJ

[PapaNew]

The feds including activist Supreme Court Justices, don’t want to fix themselves and don’t want anyone else fixing them.