Making the case for a full rewrite of the U.S. Constitution
In a blog post HERE last week, I asked for a shows of hands of readers who think it’s time for a new Constitutional Convention to rewrite our national charter.
Personally, I’m not one of those who sees every constitutional controversy as good cause to rethink the whole document.
But, in the interest of fairness and balance, I offer you THIS ARGUMENT on the matter from Alex Seitz-Wald:
America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on. “No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead.… Every constitution, then, and every law, naturally expires at the end of 19 years.” By that calculation, we’re more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn’t pretty.
If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now. Americans today can’t agree on anything about Washington except that they want to “blow up the place,” in the words of former Republican Sen. George Voinovich as he left Congress, and maybe that thought isn’t so radical.
Clocking in at some 4,500 words—about the same length as the screenplay for an episode of Two and a Half Men—and without serious modification since 18-year-olds got the vote in 1971, the Constitution simply isn’t cut out for 21st-century governance. It’s full of holes, only some of which have been patched; it guarantees gridlock; and it’s virtually impossible to change. “It gets close to a failing grade in terms of 21st-century notions on democratic theory,” says University of Texas law professor Sanford Levinson, part of the growing cadre of legal scholars who say the time has come for a new constitutional convention.
Larry Sabato, the ubiquitous and mild-mannered political prognosticator by day, is a radical constitution-rewriter by night. In his 2008 book, A More Perfect Constitution: Why the Constitution Must Be Revised, Sabato offers a number of pragmatic ideas: The Senate, he says, should be expanded to give more populous states at least a bit more representation, and it should also include “national senators”—all former presidents and vice presidents, maybe others—whose job it is to guard national interests over parochial ones. Sabato’s plan would also double the size of the House (to make representatives closer to the people) and enforces a nonpartisan redistricting process to end gerrymandering. Elections for president, Senate, and House, in Sabato’s vision, are rescheduled to coincide more often, while presidents would serve a single, six-year term (the idea is to make their governing less political, while giving them enough time to implement change).
“A lot of people have conniptions” when you start talking about changing the Constitution, acknowledges Nick Dranias, a constitutional lawyer at the conservative Goldwater Institute in Arizona. “But the idea that the Founders thought the Constitution would be a perfect and unchanging document is simply not true.” The problem is that they didn’t realize how difficult they’d made it to actually change things. The U.S. Constitution is the world’s hardest to amend, according to Levinson. (Yugoslavia used to hold that distinction; perhaps not coincidentally, Yugoslavia no longer exists.)
Surprisingly, considering their reverence of the Founders, conservatives have led the way in reimagining the Constitution, so they can add an amendment to create a right to life after Roe v. Wade or to rein in the federal government with a balanced-budget amendment. Others have called for more holistic changes, to empower states vis-à-vis Washington. But a full-on constitutional convention goes too far, says Dranias, and would inevitably descend into chaos (just imagine dealing with abortion, for instance, or gun rights).
Put simply, we’ve learned a lot since 1787. What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science. More than 700 constitutions have been composed since World War II alone, and other countries have solved the very problems that cripple us today. It seems un-American to look abroad for ways to change our sacred text, but the world’s nations copied us, so why not learn from them?
When the original constitutional convention convened in May 1787, members were tasked, simply, with proposing amendments to the Articles of Confederation. But once they got going, they realized that the Articles were so flawed and they wanted to change so much that they would need to start from scratch.
What a convention might look like is for the public to decide. It might, as Levinson proposes, be populated by citizens selected by lottery and given two years and plenty of staff and resources to come up with something. Or it might look like what Dranias and Lessig propose, where 38 states can come together to agree on the text of an amendment and then present it to Congress and demand ratification. “The most important thing a convention would do is to simply jump-start and conduct a national conversation that we’re not having,” Levinson says. After all, the status quo isn’t working. We badly need a more perfect union.