Opinions of Individuals with Legal Expertise and Experience
LR6
For further information: Kathy Wilmot 308 340-3987

Arthur Goldberg, Associate Justice of the U.S. Supreme Court: “As we look forward to celebrate the bicentennial of the constitution, a few people have asked, why not another constitutional convention. I would respond that one of the most serious problems Article 5 poses is a runaway convention. There is no enforceable mechanism to prevent a convention from reporting wholesale changes to our constitution and Bill of Rights. Moreover, the absence of any mechanism to ensure representative selection of delegates could put a runaway convention in the hands of single issue groups whose self-interest may be contrary to our national well- being.”

Former Chief Justice of the Supreme Court Warren Burger: “I have also repeatedly given my opinion that there is no way to limit or muzzle the actions of a constitutional convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or one issue, but there is no way to assure that the convention would obey. After a Convention begins it will be too late to stop the convention if we do not like its agenda.”

“Whatever gain might be hoped for from a new constitutional convention could not be worth the risk involved. A new convention could plunge our nation into constitutional confusion and confrontation at every turn with no focus on the subject needing attention. I have discouraged the idea of a Constitutional convention. And I am glad to see states rescinding their previous resolutions requesting a convention. In these bicentennial years we should be celebrating its long life, not challenging its very existence.”



Rex E. Lee, former Law School Professor, later President of Brigham Young University:
“In short, if the question is whether a runaway convention is assured, the answer is no, but if the question is whether it is a real and serious possibility, the answer is yes. In our history we have only one experience with a constitutional convention, and while the end result was good, the convention itself was a definite runaway.”

“This is in response to your letter of December 12 in which you asked for my opinion concerning whether under Article V of the U.S. Constitution, a constitutional convention called to consider a particular issue could be limited either by congressional directive or otherwise to that single issue. The only safe statement that could be made on this issue is that no one knows, but the only relative precedent would indicate that the convention could not be so limited. Anyone who purports to express a definitive view on this subject is either deluded or deluding.”

Charles Allen Wright: Professor of Law at the University of Texas at Austin:
“I feel quite certain that even opening the door to the possibility of a constitutional convention would be a tragedy for the country.”

Christopher Brown, Professor of Law, at the University of Maryland School of Law:
“In my view, the plurality of ‘amendments’opens the door to constitutional change far beyond merely requiring a balanced federal budget.”

Gerald Guenther – Professor of Law at Stanford University:
“There is no denying the fact, that if the present balanced budget campaign succeeds in eliciting the necessary applications from 34 state legislatures, the convention call will be triggered by inadequately considered state applications for the vast preponderance of the legislative applications rest on an entire absence of consideration of the risk of a convention route. In my view that constitutes a palpable misuse of the Article V convention process. The convention route, as I have said, is legitimate when it is deliberately and knowingly invoked. The ongoing campaign, by contrast, has produced a situation whereby inattentive, ignorant, at times cynically manipulated state legislative action threatens to trigger a congressional convention call. I cannot support so irresponsible an invocation of constitutional processes.”

“The fear that a constitutional convention could become a runaway convention and propose wholesale changes in our constitution is by no means unfounded. Rather this broad view of authority of a convention reflects the consensus of most constitutional scholars who have commented on the issue.”

“A convention once called would be in the same position of the only other convention we have had in our history - the 1787 constitutional convention that proposed the constitution that we live under today and whose bicentennial we celebrated so recently. The Philadelphia Convention too was in effect a runaway convention.”

Richard B. Morris, Author:
“The delegates at the convention were sober realists. They knew the greatest battles lay ahead. The Convention had overstepped its instructions. It had scrapped the articles instead of amending them. Having defied Congress the convention decided to pursue what amounted to a revolutionary course by declaring the ratification by nine states sufficient ‘for the ratification of the constitution between the states so ratifying the same.” In other words the constitution was being submitted directly to the people through ratifying conventions. Not even Congress, which had summoned the convention, would be asked to approve its work. Still, Congress, after acrimonious debate, and without endorsement or disavowal, did submit the constitution to the state legislatures, to be submitted in turn to conventions in accordance with Article 7 of the constitution, providing that once 9 states had ratified the constitution, it would go into effect between the affirming states.

SC Justice Antonin Scalia:
“I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?”

Randy Barnett: Professor of constitutional law at Georgetown University:
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Some Legal Scholars who agree no one can mandate a limited issue Convention under Article V:
Warren E. Burger, Chief Justice of the US Supreme Court
Arthur J. Goldberg, Associate Justice of the U.S. Supreme Court
Bruce Van Sickle, U.S. District Judge, North Dakota
Robert Bork, Judge, United States Court of Appeal, Washington DC, SC Justice nominee
Alexander Alienkoff, University of Michigan Law School
Florian Bartosic, University of California at Davis
Charles L. Black, Yale Law School
C. Christopher Brown, University of Maryland Law School
Neil Cogan, Southern Methodist University Law School
Walter E. Dellinger, Duke University Law School
Thomas Emerson, Yale Law School
Jefferson B. Fordham, University of Utah Law School
Gerald Gunther, Stanford University Law School
Rex E. Lee, Brigham Young University Law School, President of Brigham Young University
Betsy Levin (Dean), University of Colorado Law School
Forrest McDonald, Scholar, National Endowment for the Humanities
Arval A. Morris, University of Washington Law School
Charles E. Rice, Notre Dame Law School
Terrance Sandalow, (Dean) University of Michigan Law School
Robert L. Schwartz, University of New Mexico Law School
Lawrence H. Tribe, Harvard Law School
Charles Alan Wright, University of Texas at Austin Law School