A New Constitutional Convention?

I confess: I can’t think like a law professor. I can’t sustain interest in abstraction for long without bringing it down to the concrete, to where the abstraction affects or is affected by human beings, with their whims, desires, fears, and general messiness.

So when I read Sanford Levinson’s post suggesting that a new Constitution convention might be a good idea and Richard Epstein’s post opposing a new Constitutional Convention, I wasn’t theoretically opposed to the idea of a new Constitution (I’d like to see separation of corporation and state). But my mind leapt immediately to the practical consequences.

If we had a Constitutional Convention right now, would we wind up with more freedom or less? Epstein writes, “any revision of the document will move us dangerously along a path of greater and more powerful government at the national and state levels that will only make matters worse,” and he’s right. A new Constitution would contain the spirit of the times, which is one of fear carefully curated by the government. I am unwilling to entrust a Constitution to a public that thinks TSA should do “whatever it takes” to make us marginally safer from illusory or nominal threats of terrorism.

The Constitution is a leash on government. For over two hundred years that leash has been stretched and abraded by all three branches of government with the voters’ collusion. A new Constitution, written and ratified by representatives chosen by America’s fearful 21st-century voters, would be a nightmare. (Imagine a Fourth Amendment written for a public that is conditioned by government and media to think that only guilty people would object to government searches.) A new Constitution written now would not, as Epstein says, likely make things worse; it would inevitably do so.

If not now, then when? The Constitution was written at the tail end of the Enlightenment, when the western world’s best minds, having focused for a century on bringing the power of reason to bear on human knowledge and culture, were experimenting with freeing themselves from the bonds of superstition and tradition. Will such a time ever come again?

If we can’t wait around for a new Enlightenment for our next Constitutional Convention, when might it be safe to rewrite the Constitution? The current Constitution (which functioned very well for a long time, and is still better than the existing alternatives) was written by people who had just fought a war to free themselves from tyranny. There were threats in their world, but freedom was more important to them than those threats. They wrought the leash to prevent all of the depredations that they could foresee.

Until tyranny in America has again gone so far that the American people have had enough of it and would rather overthrow it than be kept perfectly safe, any Constitutional Convention is doomed to bring less freedom rather than more.

(H/T Damon W. Root, Hit & Run)

Comments 3

  1. Michael Stuart wrote:

    I dunno, Mark, why NOT a new Constitution? We’ve followed so closely every other step Weimar Germany took to National Socialism–Reichstag Fire, Enabling Act, etc–why not follow the script to the end?

    Seems a shame to disappoint the theatre-goers by missing the trope. We’re all set to give the world a big laugh.

    Posted 09 Mar 2012 at 4:36 pm
  2. Bill Walker wrote:

    If one actually READS the over 700 applications submitted by 49 states that have been submitted to Congress, it becomes obvious the states desire MORE, not less, rights for the American people. Granting, for example, the right of initiative and referendum to the people clearly increases their power, not decreases it. The applications can be read at http://www.foavc.org.

    Posted 12 Mar 2012 at 6:35 pm
  3. admin wrote:

    Bill, that is a very impressive undertaking.

    It appears that many states have rescinded their applications. In fact, since 1989, there have been, it appears, more rescissions than applications. Someone who was so inclined could probably figure out what applications are still outstanding.

    But look: if you call a convention to amend the Constitution for one reason, the whole thing can be rewritten for entirely unrelated reasons.

    If there were a Constitutional Convention, big-money interests, including the prison-industrial complex, would be driving the show.

    The states want more power for the American people in relation to the federal government. Perhaps. But you’re not likely to have a state propose strengthening the Fourth Amendment (for example). The American People, scared out of their boots by government propaganda, wouldn’t stand for it.

    Posted 12 Mar 2012 at 6:52 pm

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