Associate Justice Arthur J. Goldberg: Authoritative Commentator or Just Another Person with a Bias?

Arthur Goldberg (1971)

Opponents of the Convention of States Project are fond of quoting former Associate Supreme Court Justice Arthur Goldberg in support of their opposition to an Article V Amending Convention to propose amendments to our Constitution. They rely upon an op-ed article written by Justice Goldberg in the Miami Herald on September 14, 1986. Clearly, Associate Justice Goldberg is potentially a powerful ally in their attempts to thwart the use of the constitutionally-provided remedy for an over-reaching federal government.

Two questions arise regarding the use of Associate Justice Goldberg’s writings. The first is whether they are accurately quoting the writings of Goldberg. The answer to that question is that they are, indeed, quoting him accurately. In the Miami Herald op-ed, which is essentially a re-hash of an article that he had written previously in the fall of 1983 in the Hastings Law Constitutional Quarterly, he expressed many of the concerns the opponents of the Article V amending convention claim today as the basis for their “fears” of the Article V process—primarily the fear of a “runaway” convention. Further, both Goldberg and the opponents of today draw support from the letter of James Madison, Jr. to George Turberville in November, 1788, claiming that the letter expresses Madison’s “fear” for the conduct and outcome of such a convention. Both issues will be examined in the paragraphs that follow as we look at the second question—whether Associate Justice Goldberg uses factual objections to the Article 5 Convention or whether he simply shares their biases.

In both the op-ed and the Hastings Law writings, he bases his concern primarily on the fear of a “runaway convention” (citing the fallacious notion that the Philadelphia convention of 1787 was such a “runaway convention”) and listing all manners of theoretical objections using the terms “could lead to”, “Congress may”, “If the convention did run away, Congress might….”, etc. Goldberg fails to mention the Annapolis convention of 1786, formally titled “Meeting of Commissioners to Remedy Defects of the Federal Government” where delegates had met to deal with some trade issues that had arisen among the states. The meeting convened on September 11, 1786. After just three days, the Annapolis delegates recognized that the alliance under the Articles of Confederation was wholly incapable of allowing them to accomplish that task. There were many more issues with which they had to deal and for which they would need more authority than had been given them. They adjourned and sent a report to Congress and to the states asking for a broader convention to be held in May of the following year in Philadelphia. They asked that the delegates to that convention would be given broader authority to deal with issues other than commercial trade. In response, the states called the convention in Philadelphia, directing the delegates, as requested in the Annapolis report, “to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal government adequate to the exigencies of the union”. These or similar words are found in every state resolution calling for and appointing delegates to the Philadelphia Convention.

It is often claimed falsely that the convention delegates were commissioned “for the sole and express purpose of amending the Articles of Confederation”. This is simply not true. The first resolution using those words came, not surprisingly, from the Confederation Congress itself on February 21, 1787. By that time, six states had already passed resolutions to send delegates to the Philadelphia convention–four having done so in a span of about six weeks–and some had selected delegates. After the congress inserted this language into ITS call, SIX MORE states followed with their own resolutions. Of those six, only THREE put the “sole and express” language in their resolutions (New York, Massachusetts, and Connecticut). Thus, the FACT is that the vast majority of delegates were given full authority by the states to propose whatever measures they collectively thought “…necessary to render the Constitution of the Federal government adequate to the exigencies of the union”; therefore, they were authorized by the States to act as they did and there was no “runaway convention”. Yet Goldberg, like today’s opponents of the Article V amending convention, made that statement claiming the ensuing Philadelphia Convention “broke every restraint intending to limit its power and agenda”.

Next in Goldberg’s articles comes more hypothetical gibberish about the difficulties of dealing simultaneously with consideration of a parliamentary system, returning to the gold standard, gun control, ERA, school prayer, abortion vs. right-to-life, and “anti-public-interest laws”, which all seem to be contrived to use against the Article V process based on the erroneous assumption that a new Constitution might result.

Justice Goldberg next recruits James Madison, one of the founders most responsible for the United States Constitution. He claims that Madison warned strongly against a “second constitutional convention” in a letter to George Lee Turberville written in November, 1788. He “overlooks” the reality that, at that time, the state of New York was petitioning for a new convention to reconsider many of the measures that were just settled at the Philadelphia convention. Madison was negative about the idea, apparently because the Philadelphia convention had struggled to reach the finish line in harmony, leaving incomplete and unresolved some of the differences of opinions and interests of the several states. Virginia had ratified the new Constitution five months earlier without their delegates’ desired “rights” amendments in order to show comity and to avoid further confrontation in the convention but with the expressed understanding that their proposed amendments would be considered in the first Congress. On May 5, 1789, when the Virginia petition for the amendments that became the Bill of Rights was read in Congress, a member proposed to refer it to committee. That action was opposed by another member and by Madison. Madison stated that he doubted the propriety of referring to a committee because “it would seem to imply that the House had a right to deliberate upon the subject”. This, he believed was not the case “until two-thirds of the State Legislatures concurred in such application, and then it is out of the power of Congress to decline complying, the words of the Constitution being express and positive relative to the agency Congress may have in case of applications of this nature”. Citing Article V, he went on to say that, from that Article, “it must appear that Congress have no deliberative power on this occasion. The most respectful and constitutional mode of performing our duty will be, to let it be entered on the minutes and remain upon the files of the House until similar applications come to hand from two-thirds of the States”. Madison, at that moment, confirmed the propriety of the Article V convention on application of two-thirds of the States, and the limited role of the Congress and the requirement under the Constitution that Congress call the convention. He does not sound like someone with a fear of the process.

So, the opponents of the Convention of States Project have not misused Justice Goldberg’s writings but the greater question remains about the veracity of the justice’s writings and speculation about the reasons for his errors in fact. He was, of course, a liberal progressive Justice and an avid constructionist. He did not want the balanced budget amendment that was then the goal of the Article V movement. His arguments against an Article V convention sound very much like those of the “progressive” liberals over the years and, more recently, the inexplicable use of those same arguments by conservative groups who spurn the constitutional route to remedy an overreaching Federal government, while favoring the truly dangerous paths of nullification and—for some—armed rebellion and revolution. It appears, on careful examination, that Associate Justice Goldberg was only expressing his own biases “cloaked” in the robe of a former Supreme Court Justice.

The end result is the same fear-mongering, the same distortion of historic facts, the same theoretical objections based on what “might” or “could” possibly happen while ignoring the reality of what IS happening and has been happening for the greater part of the past century and which has produced a greater need for an Article V amending convention than the founders could ever have imagined. The Founders, if they could see what has become of the government they so carefully crafted, would be shocked that we, the people, have not acted to rein in the federal government long before we had $18 trillion in debt, legislators serving 50 years and longer in the Congress, elected senators voting consistently against the clear best interests of their states, a Supreme Court and federal judiciary that has become as politicized as Congress, and dozens of executive agencies and their unelected staffs creating laws contrary to the expressed will of the people and the states.

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