Samuel L. Fieldman, a lawyer and Article V expert, has unearthed an internal congressional memo from the establishment’s anti-convention campaign during the 1960s, 1970s, and early ’80s. In the memo, a congressional staffer outlines for his boss, a prominent Democratic Senator, how to oppose a convention.
We previously have documented how, beginning in the late 1960s, leading figures in the national liberal establishment “circled the wagons” against growing public sentiment for an Article V convention.
Law professors at some of the nation’s most prestigious institutions led the way. Many of them had clerked for the Supreme Court, and wished to stymie a convention that might propose overruling some of the court’s most controversial decisions. Others simply wished to protect the overgrown federal government from challenge. Without undertaking much research into Article V, they tried to scare people by claiming the composition and protocols for such a convention were unknown and that a convention could exceed its powers and try to re-write the entire Constitution.
Other opinion makers, including establishment media outlets such as the New York Times and Washington Post, uncritically reported and endorsed their claims, generally without seeking alternative points of view.
All of those involved in the campaign were left of center, but some right wing groups now echo the same false claims.
The Memo
The Memorandum, which you can read here, was written on January 16, 1979 by a congressional staffer who signed himself as “Marshall.” According to Fieldman, the memo was sent to the staffer’s boss, Senator Birch Bayh (D.-Ind.), then one of the most visible and influential members of the Senate. Bayh, a strong liberal, could be expected to oppose any convention for proposing limits on the federal government.
In keeping with the general ignorance of the time, the memorandum inaccurately calls an amendments convention a “constitutional convention.” It outlines several possible public responses for the Senator, such as “Hold hearings with the aim of demonstrating the risks of calling a convention” and “coordinate a behind-the-scenes campaign to quell state legislatures from urging Congress to call a convention.”
Also on the list was congressional sponsorship of convention procedures—a step that the staffer (along with many others at the time) did not realize was unconstitutional. This is because an Article V convention is a meeting of agents from state legislatures, who control convention procedures. Indeed, the Constitution’s framers inserted the convention mechanism into the Constitution to enable states to bypass Congress.
On the other hand, the staffer cautioned against “appear[ing] to be blocking the popular will.” But he added that “if you will hold hearings on Con[stituional] Amendments to balance the budget. I really do not see how people can accuse you of obstructionism . . . .”
The staffer then laid out some possibilities for the Senator:
No one in Congress is presently holding himself out as knowledgeable on these issues, and you could certainly fill that void. Doing so would not be with out its political risks, but I could see you speaking out in a way that would make you appear responsible and not simply taking a stand against democracy.
The possibilities here are:
4) your speaking out on the problems with such a convention (or alternatively coordinating a behind-the-scenes campaign against the call);
5) keeping a relatively low profile but having the subcommittee staff prepare a report which reveals the complexity of a call . . . .
This memo didn’t help Senator Bayh much. The following year he was defeated for re-election by the future Vice President, Dan Quayle.
The Context of the Memo
Opposition to a convention when this memorandum was written was driven by the fear that a convention would propose a balanced budget amendment. Mr. Fieldman explains the context in which the memorandum was issued:
“Constitutional amendments invariably send shivers through the hearts of liberal Democrats, and the mere mention of a constitutional convention can cause cardiac arrest in the same constituency.
“The reaction in Washington was frantic. In the office of Senator Birch Bayh, Chair of the Subcommittee on the Constitution in the Senate Judiciary Committee, one of a flurry of memos laid out six possible responses . . . .
“President Carter took interest in the idea as well, securing advice in January from Laurence Tribe at the same time his Attorney General’s Office was providing a brief but quality review of the scholarship. By ‘March 1979, a coalition of labor, religious, business, and other interests met to organize a group called Citizens for the Constitution. This group, under the leadership of the Lieutenant Governor of Massachusetts, Thomas P. O’Neill III, helped coordinate the efforts of those persons who opposed efforts to convene a constitutional convention during 1979.’ Immediately, the group began working closely with the White House. In July, 1979, a meeting at Camp David secured both President Carter and Vice President Walter Mondale as part of the opposition. O’Neill’s group Citizens for the Constitution would later be renamed Citizens to Protect the Constitution. Linda Rogers-Kingsbury, Bayh’s chief of staff who worked on the 1979 memos, would take over as Executive Director of the organization. Former President Carter would join as a member of the Board of Advisors, alongside Laurence Tribe, Gerald Gunther and Justice Arthur Goldberg.
Fans of Article V will notice some names in Mr. Fieldman’s list. Professor Tribe was the author of a list of supposedly unanswerable questions about a convention. It was published in Pacific Law Journal (1979). Professor Gunther penned an article in Georgia Law Review (1979) emphasizing the alleged “uncertainties” about the amendment process. Arthur Goldberg was the author of an article in Hastings International Law Quarterly (1983) in which he promulgated the myth that James Madison opposed Article V conventions.
These articles masqueraded as scholarship—but as Mr. Fieldman demonstrates, they were part of a campaign by apologists for the federal government to prevent the states from exercising one of their constitutional prerogatives.
