I have taught courses on the famous gathering of the “Founding Fathers” in Philadelphia in 1787. On the final exam, I ask students to take a position on calling for a new Constitutional Convention. Most are generically in favor; but this year, a couple of the more thoughtful essays argued that our body politic was too skewed to face up to such a fundamental reconsideration.
At the time of the first one, the idea that a large country (we were about 865,000 sq. mi, a quarter of today’s size) could be a republic was novel and contentious. The only close example was the Netherlands which was run as an oligarchy dominated by merchants’ councils in its component provinces. The idea of the separation of powers had been bandied about (e.g. Montesquieu), but had no place in a monarchical system with a few arguable exceptions such as the Parlements of France. Perhaps the most radical concept in the document was the document itself: a written constitution: A government of laws, formally structured and put down in black-and-white.
It has been a greater success than anyone had a right to expect. With the addition of the Bill of Rights in 1791 and the post-Civil War Amendments (13/14/15) adopted in 1865-70), the package has been basically unchanged. The other 14 amendments have been, by-and-large, tweaks.
This has been due to two factors: 1) the amendment process is actually pretty difficult and 2) the document has accumulated an almost religious sanctity. Neither of these is inherently bad, but together they have left us not only with an out-of-date structure, but, more fundamentally, a rusted mentality that has trouble conceiving of necessary change.
This is not to say that there haven’t been a wide range of proposals from all corners of the political spectrum for adding or limiting rights. Nor do we lack examples (sometimes abusive) of other countries’ changing their foundational documents (after we did it in the 18C, most everybody (except the Brits) have written one). Still, outside the politico-legal corner of academe, we lack a robust conversation about the need for constitutional change.
I am no fan of willy-nilly constitutions. There is great value in stability. Jefferson famously argued for constitutions to be revised every 20 years to allow each new generation to adapt the premises of their political society to changing circumstances. Since our lifespans/generations are a bit longer, I would go for 50-year expiration cycle, but I agree with him that institutionalizing change would be a good thing.
Here is where the question of defining our political culture intersects with current judicial politics. The latest round of Supreme Court appointments claim descent from Antonin Scalia’s judicial philosophy of originalism; i.e. the idea that courts shouldn’t adapt constitutions to changing social circumstances and should stick with the original language and the actual intent of the authors of that language. This is not a ridiculous philosophy, but it can only work, as a practical matter, in a constitutional environment in which the ordinary amendment process is reasonably supple. Our current requirement of 2/3 of both houses of Congress plus ? of the States makes change way too hard to implement. (The Scylla to this Charybdis is exemplified by the recent British Brexit fiasco where a fundamental (constitutional) change was made as a result of a single, popular, simple majority, vote). If we had a more accessible means of changing the constitution, it would go a long way towards making judicial originalism quite sensible. (The best argument against originalism that I have seen lately proposes the question: since the Constitution authorizes Congress to provide for an Army and a Navy, does that make the Air Force (or the new Space Force) unconstitutional?)
In the meantime, we got what we got. Congress can propose changes for state ratification. Or, there can be a convention, i.e. a second Constitutional Convention (“ConCon.2”), called either by Congress or the States.
I can think of no better way of energizing our political culture than such an event.
At the same time, there are many who are afraid of democracy and fear that current provisions, protections, rights, etc. would be at risk in such an event. And they may be right. Certainly the current political environment is a mess; rife with hyper-partisanship and short-sightedness (and the Dems are only marginally better).
What is clear to me is that the world has changed a lot in 240 years. A document written at the dawn of the industrial revolution for a collection of 3-4 million folks scattered on the eastern seaboard of a continent, where slavery was sanctioned and women dismissed, is, simply, outdated. So, too, is the nature of state-centered federalism. We are no longer a federation of sovereign states, but one country with historically-fixed boundaries. There’s a lot to be said for limiting the power of the federal government and states can be useful in this regard, but not as the basic unit of organization and identity. In other words, it is long past time we lived in a country governed by rules laid down by a group of well-off white guys in wigs.
Beyond the issue of rights and governmental structure, we live in a world where medical science (and, soon, computer science/AI) pushes at the definition of what it is to be a human and eligible for rights. We have examples and practice from scores of other countries to draw upon and adapt.
In my Constitutional History course, I show a clip from the musical 1776 (Broadway debut 1969) in which Ben Franklin asks rhetorically about posterity’s view of the Founding Fathers: “What will they think we were, after all, demigods…?” Well, apparently, we do. It reminds me of those in the middle ages who thought no one could understand nature better than Aristotle and that humanity had been in decline since Eden. Much of the Scientific Revolution and Enlightenment were about recognizing new modes, types, and levels of understanding the world.
This is not to say that Barack Obama or Amy Coney Barrett is our equivalent of Isaac Newton. But we, as a society, ought to have a bit more confidence in ourselves. A new constitution will be no panacea, but how can we take on the future without one?
I will, from time to time, chime in with other specific suggestions about the kinds of changes we need. In the meantime, let me know: What would you like to see in our new country?