Go To Page 6: A, B, C, D, F, G  Return to Page 6

Page 6 E--Continuing The Discussion of JBS/Eagle Forum

Burger and Scalia

Much of the credibility of the JBS/Eagle Forum campaign rests on a purported 1983 letter written by "retired" Chief Justice Warren Burger (far left) [tenure: June 23, 1969-September 26, 1986] to Phyllis Schlafly, founder of Eagle Forum "warning" of the "dangers" of a "constitutional convention." (See: 2009 JBS Article). More recently JBS/Eagle Forum used comments made by Associate Justice Antonin Scalia (near left) [tenure: September 26, 1986-February 13, 2016] during a television interview to "warn" about a "constitutional convention." Closer examination raises questions of authenticity, accuracy and conclusion assertions of "warnings" by these two men however. 


Controversy surrounds the authenticity of so-called 1983 Burger Letter. This is not the only time Phyllis Schlafly contrived evidence to make a political point. (See: Madison Letter Page 6 F). Eagle Forum claims the letter was written by Burger in 1988. But this date also raises questions of authenticity. Incontrovertible evidence proves the letter was written five years earlier possibly by Burger but most likely by someone else. The letter has been posted on the anti-convention website Sweet Liberty (together with source and history) since at least 1996 long before any controversy over authenticity began. (First image, far left, click to enlarge).

Other anti-convention sources confirm the date of the letter as 1983. Page 7 of an internet article entitled "Conference of States" dated May 5, 1996 refers to the "1983 letter from Chief Justice Warren Burger to Phyllis Schlafly addressing the dangers of a Con-Con." (Second image, center). The full article may be viewed by clicking here. On January 12, 2009 Tom DeWeese, a strident opponent of an Article V Convention acknowledged in his column, in response to a statement by FOAVC co-founder Bill Walker, that the letter was written in 1983. (Third image, right).

The basic problem with the 1983 letter supposedly written by Burger is it describes him as "retired" when in fact the public record shows Burger did not retire from the Suprme Court until 1986.

Three separate anti-convention sources (who have no reason to lie) place the letter as "written" by Burger in 1983. At least two of these sources published the 1983 date thirteen years before any question of authenticity was raised. Despite these facts JBS/Eagle Forum continue to assert the letter was written in 1988 without providing definitive proof that the letter was, in fact, written in 1988. Yet the fact remains the letter is dated 1983 and published on websites which oppose an Article V Convention and therefore have no reason to lie about the date of the letter.

Assuming the 1983 letter is authentic, the record indicates Schlafly and Burger exchanged a total of six letters, the purported 1983 letter followed up by two letters written in 1986. While the Burger letters have been published, Schlafly's letters to Burger have never been released. (The letters may be read by clicking the images below; Schlafly's letters in their logical position of transmission are noted as "Missing"). This deliberate obstruction prevents examination of the entire record of these letters. It prevents accurately judging whether Burger's comments (if actually made in 1983) were his own or in response to craftily worded statements by Schlafly. The authenticity of the two 1986 letters are not in doubt. They were written before Burger retired as Chief Justice as official correspondence and therefore are federal public record.



Phyllis Schlafly provides further doubt as to authenticity of the 1983 or even 1988 Burger letter in her biography "Phyllis Schlafly and Grassroots Conservatism, A Woman's Crusade" by Donald T. Critchlow (2005). (Excepts of pages from the book may be clicked to enlarge). In discussing Schlafly's opposition to calling an Article V Convention for the purposes of passage of a balanced budget amendment the book states, "By 1982, the movement to call a constitutional convention was only two states short of the thirty-four states specified in Article V as the trigger for a convention." (See text, image left; footnote, image right). As noted in the book Phyllis Schlafly was one of the few conservatives opposed to a balanced budget amendment.

The public record as well as comments in the Sweet Liberty website present a different picture from that of the book however which portrays Schlafly as almost singlehandedly preventing an Article V Convention call. Sweet Liberty states Schlafly was "a day late and a dime short as often times seems to be the case" in regards to opposing a convention. The public record supports this statement. Schlafly indeed was "a day late and a dime short" in her opposition due to the fact that by the time she entered the convention fray, the states had already applied in sufficient number to cause a convention call on the subject of a balanced budget amendment.

By 1982 the number of states applying for a convention on the subject of a balanced budget: 36 states. The reason no convention was called is also a matter of public record:  Congress has never established a means of tabulation of convention applications so that it was aware when the states applied in sufficient number to cause a convention call.  Thus 11 convention calls are now owed. Neither Phyllis Schlafly or Warren Burger had anything to do with a convention not being called; it was the incompetency of Congress that was responsible. The first required convention call occurred in 1910 three years after Burger was born and 14 years before Schlafly was born.

The book then states,"Schlafly produced one of her most effective ant-Con Con pieces when she convinced former Chief Justice Warren Burger to write a one-page letter opposing a constitutional convention." (See image left). The book does not explain what arguments Schlafly used in her letter "convince" Burger to purportedly write his letter. The book continues, "The defeat of convention resolutions in New Jersey, Kentucky, Michigan, and Montana killed the Con Con by 1988, much to the consternation of fiscal conservatives who largely blamed Schlafly for the defeat. They were correct; not a single state passed a Con Con resolution after Schlafly entered the battle." 

There are several problems with the scenario described Schlafly's book. As already noted, Burger was Chief Justice until September, 1986. The footnotes describing the "one page letter" from "former" Chief Justice Burger refer to the two letters written in 1986 while Burger was still on the court. (See image, right). There is no reference in Schlafly's book whatsoever to a 1983 or 1988 letter written by Burger nor any record of any 1983 or 1988 correspondence from Schlafly to Burger. Obviously if this letter whether written in 1983 or 1988 had such a political effect as the book claims it certainly would be referenced in the book if it existed. No references to a 1983 or 1988 Burger letter at the purported time of the writing of the letter by the mainstream media can be found.

While the book claims the "one page letter" had a massive political effect, there is no reference to the letter, no follow up stories by the media about the letter nor any record of anyone favoring a convention responding in any manner to the letter at the time of its purported writing in the media. In sum, in order to accept the letter is authentic it must be accepted a sitting chief justice of the United States Supreme Court expressed in writing in a published letter he believed a provision of the Constitution allowed for overthrow of the Constitution and nobody at the time made any comment to his statement whatsoever.

Further doubt is raised by the fact that if, as JBS/Eagle Forum claims, the letter was actually written in 1988, there was no political purpose in writing it. By 1988 the political battle over a balanced budget amendment was done according to the book. Why would Schlafly (or Burger) waste time with a useless political letter on a subject (according to the book) Schlafly had already won?

Why didn't Burger react to the phoney letter? Probably because he didn't know about it. The Internet as we know it today did not exist in 1983 TCP/IP only having come into being the standard for the Internet on January 1 of that year. PDF Format would not exist until June 15, 1993. Therefore unlike today the Internet was not well used meaning distribution of information was entirely different. Unless someone directly sent the information to a person, or it was published in a newspaper, that person had limited means to discover the information independently. 

Federal judges have a strict code of impartiality. Most likely Burger avoided contact with any organization (particularly one directly associated with a case before the Supreme Court) which might prejudice him. He had been involved in a case (Now v Idaho, 459 US 809 (1982)) concerning Article V just months before "writing" the purported letter. Thus a group might circulate a letter "written" by Burger but which the purported author knew nothing about particularly since publication of the so-called Burger letter (or quotes from it See page 3, Schlafly 1996 column) did not begin to appear until after Burger's death on June 25, 1995. Other questions are raised in the two FOAVC videos which may be viewed by clicking on the images to the left above.

Finally, there are factual errors in the purported 1983 letter. In sum: (1) Burger was not "retired" from the Supreme Court in 1983; (2) Burger was not chairman of the Commission on the Bicentennial of the U.S. Constitution; that body would not be formed until 1985; (3) there is no record of any state rescinding any application either in 1983 or 1988.


JBS/Eagle Forum have a propensity for putting their own "spin" on things irregardless of fact. The statements of justices Burger and Scalia "warning" against a "constitutional convention" is a case in point. Ignoring the 1983 letter (probably was not written by Burger but a JBS operative) the two authentic 1986 letters as well as Scalia's 2016 interview comments at first glance appear to support JBS/Eagle Forum assertions of the two justices "warning" against a "constitutional convention." However a closer examination show both justices actually were addressing two issues, a "constitutional convention" and an "Article V Convention."

Both justices gave similar responses to both issues. This difference of support was obviously ignored by JBS/Eagle Forum for their own political purposes. As shown by two news stories from December 20, 1985 (above left) and August 21, 1987 (above right) Burger clearly opposed a "constitutional convention" saying it was a "grand waste of time" but also stated "it would not pose a threat." Thus there was no "warning" about a "constitutional convention." In the 1987 story the Associated Press reporter stated Burger "fears a constitutional convention called to propose an amendment...would start tinkering with the whole Constitution."

The reporter provided no quote by Burger stating this. Thus the reporter interpreted what he believed Burger believed instead of obtaining a quote confirming this interpretation. In both stories Burger favored the amendment process to make changes to the Constitution. ("Burger said he favored making any changes in the Constitution by adopting amendments one at a time through ratification by three-fourths of the states" December 20, 1985). Burger repeats this sentiment in his April 8, 1986 letter ("I went on to say that any particular problem should be dealt with one at a time as needed, and that there was no occasion in my view for a Constitutional Convention." April 8, 1986).  He repeats it again in the 1987 story ("That's what the amendment process is all about." August 21, 1987). In each instance the chief justice stated he favored changes in the Constitution by means of amendment. The amendment process includes an Article V Convention. As Burger was Chief Justice of the Supreme Court it can be reasonably assumed he was fully aware of this fact.
 
Burger however was obviously unaware of the true public record regarding the Federal Convention of 1787 or the fact Congress determined the Federal Convention of 1787 was not a "runaway." (See Pages 6 A and 6 B). That public record clearly shows Congress officially determined the convention did not exceed its authority and that Congress unanimously supported the recommendations of the Federal Convention of 1787.

As Schlafly has never published her letters to Burger there is no way of knowing whether Chief Justice Burger relied on "information" supplied by Schlafly as the basis for the comments in his letters or arrived at his conclusion independently. According Robert Natelson there is no evidence Burger ever did any actual research on an Article V Convention. Instead the chief justice appears to have relied solely on the word of Schlafly and/or another "close" personal friend William F. Swindler.


On April 17, 2014, Supreme Court Justices Antonia Scalia and Ruth Bader Ginsburg appeared on an episode of The Kalb Report, a on-on-one panel discussion television and radio program produced jointly by the National Press Club Journalism Institute, George Washington University and the Philip Merrill College of Journalism at the University of Maryland. The program was entitled, "A Conversation About the First Amendment." During the program host Marvin Kalb asked the question, "If you could amend the Constitution in one way, what would it be, and why?" (A video of his quote below may be viewed by clicking on Scalia's image).


Justice Scalia responded, "I certainly would not want a constitutional convention. I mean whoa. Who knows what would come out of that? But, if there were a target amendment that were adopted by the states, I think the only provision I would amend is the Amendment Provision. I figured out, at one time, what percentage of the populace could prevent an amendment to the Constitution. And, if you take a bare majority in the smallest states by population, I think something less than two percent of the people can prevent a constitutional amendment. It ought to be hard, but it shouldn't be that hard."

What "might come out of a convention" might be Scalia's amendment to Article V. The public record shows 18 states have requested an amendment for changing Article V at an Article V Convention. More importantly Scalia obviously realized there was a distinct difference between a "constitutional convention" and a "target amendment...adopted by the states." One of two methods to propose a "target amendment" in Article V is an Article V Convention. Given Scalia's comments directly concerned amending Article V is it obvious he had studied the article and was familiar with its terms. Thus he understood one mode of amendment proposal was an Article V Convention.

Scalia did not state he opposed using the convention mode of amendment proposal of Article V to bring about a "target amendment" nor did he suggest to avoid the "dangers" of a convention he had just referred to that the provision of Article V for a convention to propose amendments be removed. Instead he stated opposition to a "constitutional convention" a term not found in the Constitution. Justice Scalia's remarks concerned the ratification process of Article V and his belief it should be revised in order to make it easier to amend the Constitution as a small percentage of the population could prevent passage of a proposed amendment. (Note: Under the terms of the Constitution at no time does the population of a state have any part in the ratification of a proposed amendment. Each state has "one vote" whether by legislature or state ratification convention on the ratification of a proposed amendment and thus the effect of state population is nullified).


Both justices Burger and Scalia shared a great concern over the use of an extraordinary, unconstitutional "constitutional convention" not even referred to in the Constitution to create a new Constitution. However both justices also favored use of the amendment process described in Article V of the Constitution to bring about change to the document. That article describes "a convention for proposing amendments...to this Constitution." Neither justice at any time stated when they described a "constitutional convention" they were referring the amendments convention described in Article V. As they did not state this it is reasonable to assume the justices did not connect the two subjects or consider them identical or interchangeable.

Instead they viewed a "constitutional convention" and an "Article V Convention" as two separate, distinct constitutional issues. Questions surround the so-called 1983 Burger letter as to authenticity and accuracy. The entire record of the exchange between Phyllis Schlafly and Justice Burger has been hidden making full examination of the record impossible. Quotes from the so-called Burger letter appeared only after Burger's death. FOAVC believes the evidence available proves at least one of the so-called Burger letters is a phoney.

All of these facts make the conclusion both justices "warned" against a "constitutional convention" questionable at best. It is not even clear based on comments by Burger and Scalia whether their remarks were meant to refer to an event outside the Constitution or the convention process described in Article V. In all cases the justices clearly supported using the amendment process to effect change which includes a process which if they had reservations obviously were capable of delineating quite clearly. There is no such delineation in their comments in that when they stated support for using the amendment process to effect change they excluded using the convention proposal mode from that process to accomplish the change.

There is no statement for example of one of the justices saying, "We should only use Congress for these changes as the other mode of proposal is too dangerous." Therefore the evidence supporting the contention two justices of the Supreme Court "warned" against the danger of an Article V Convention as described in Article V of the United States Constitution is unconvincing as the sources for this contention contain no direct quote from the sources stating the comments made were actually intended to describe an Article V Convention and not some other convention  outside the Constitution.
 
As there was no official record of applications at the time of the comments by Burger and Scalia clearly neither was the position to know the  states had long since submitted the necessary two thirds applications required to cause a convention call. Thus publicly urging a convention not be held when constitutionally required was a form of insurrection. Had Burger or Scalia known the facts of public record would they still have "warned" against an Article V Convention (assuming that convention was the convention they were addressing in their remarks)? Would Warren E. Burger, Chief Justice of the United States Supreme Court, the nation's highest sitting judge or Antonia Scalia, a jurist of impeccable distinction publicly urge the Constitution be disobeyed?

This is not an insignificant point. If the justices believed despite express constitutional language to the contrary an Article V Convention has authority to completely overturn the Constitution instead of just proposing amendments to the present Constitution as specified then their belief must be absolutely untainted before it can be accepted as true. Such is not the case here. The "belief" is tainted with questions of authenticity and accuracy not the least of which is to suggest Burger and Scalia were misinformed as to all relevant facts regarding an Article V Convention by those whose purpose was to further a political agenda. Therefore FOAVC believes these comments must be disregarded.