Ask your friends, family members and co-workers where they think American freedom comes from and why it has endured for more than 200 years. They would probably cite the “freedom of speech,” “freedom of the press,” “the right to bear arms.” Or perhaps they might look toward the right to “be secure … against unreasonable search and seizure” or to a “speedy and public trial, by an impartial jury.”
Those are the answers Justice Antonin Scalia said he would typically hear in response to that question, which he put to the New Jersey chapter of the Federalist Society a little more than one year ago. But those answers, which are pulled from the Bill of Rights, are wrong, Scalia told audience members. That’s because it is the structure of the U.S. Constitution itself, and not the first 10 amendments to the Constitution, that secures American freedom, he said.
Scalia traveled to his home state that day to discuss his book Reading Law: The Interpretation of Legal Texts. The late Supreme Court justice, who died in February, championed a view of “originalist” jurisprudence that says those who make, interpret and enforce the law ought to be guided by the meaning of the U.S. Constitution as it was originally written. Those judges who substitute their own policy preferences for the original meaning of the constitutional text undermine the rule of law and jeopardize American democracy, Scalia repeatedly warned.
In other words, it is “We the People,” operating through a system of checks and balances, not the unilateral actions of judges, who uphold the Constitution. The reverence contemporary Americans have for the Bill of Rights is understandable, but somewhat misplaced. The key point Scalia raised during his address in N.J. is that what should most concern all of us today is the erosion of the constitutional structures that give force and meaning to those rights.
“Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” Scalia said in his address to the N.J. group. “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution;’ it means structure.”
Without the Constitution, the Bill of Rights, would be reduced to “just words on paper,” Scalia warned. He also reminded audience members that the Founding Fathers did not deliberate over the Bill of Rights during the Constitutional Convention of 1787. Instead, they debated over structure of the federal government.
The most damaging change to this structure came in the form of the 17th Amendment, which provided for the direct, popular election of U.S. senators, Scalia said. Prior to when the amendment was ratified in 1913, state legislators would appoint U.S. senators. While this amendment was viewed as step forward for democracy, Scalia argued that it removed a key component of the constitutional structure the framers had put in place to protect federalism and state interests.
“You now have senators who have no connection to the state government, never been in state government and some of them have never been to the state,” Scalia observed during his talk.
The idea of repealing the 17th Amendment while possibly passing new amendments in an effort to reinstate constraints on federal power has gained currency within conservative circles in recent years. Mark Levin, a talk show host and former Reagan Administration official, embraced this approach in his book The Liberty Amendments.
One vehicle to achieve these ends would be to invoke Article V of the U.S. Constitution, which provides for constitutional amendments to be proposed either by two-thirds majorities in both houses of Congress or by a convention called by two-thirds of the state legislatures. Either way, the amendments cannot become part of the Constitution unless they are ratified by three-quarters of the states.
Scalia himself would not have been keen on a full-blown convention.
“A constitutional convention is a horrible idea,” he told his audience in N.J. “This is not a good century to write a constitution.”
There are valid concerns about a “runaway convention.”
But, according to Article V, a Convention of States could be called just for proposing amendments and those amendments would still need to be ratified by three-quarters of the states. Moreover, there is an argument to be made that a “runaway convention” is already in motion within federal agencies that operate beyond constitutional restraints.
In what turned out to be one of his final public appearances, Scalia made it clear that the freedoms we celebrate in our everyday conversation could be reduced to mere “words on paper” before too long unless the federal government is put back inside a constitutional box.
It may be time to go long, throw deep and consider the Article V option. The strict reading Scalia favored suggests there may be an Article V opening for the states to bring the federal leviathan to heel.
Kevin Mooney is a journalist and investigative reporter. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
