Regularizing Constitutional Change
Has anyone--the Founding generation, scholars, jurists, attorneys, or citizens--ever suggested that we should regularize constitutional re-examination and change? A constitutional (mini-) convention, say every 20 years, would do the trick, but other proposals also warrant consideration. The details, of course, need to be worked out inter alia by answering the following questions: (1) Will the entire document be reconsidered every 20 years or just those provisions that have caused some interpretive and institutional difficulty during the preceding 15
year period? (2) Should the re-ratification" or revision require a supermajoritarian or majoritarian vote? (3) If supermajoritarian, wouldn't 60 percent be a better balance between too easily ratifying the changes by majoritarian vote and making it too difficult by retaining the present procedure? (4) Should the people, Congress, or the states, or all of the above be involved in this process of periodically re-ratifying (revising) the Constitution? One possible benefit of such an entrenched procedure would be that citizens would have to take the Constitution more seriously than they now do. Another would be that constitutional discourse and debate would be a necessary feature of legislative battles, commentary on political developments, punditry and political discourse generally. Of course, there is a down side also. A rigid stability--rendering it virtually impossible to change the glaring defects in the Constitution--might be lost. But then again good riddance. On 19 October 2007 a mock second constitutional convention will be held in Washington, DC.
year period? (2) Should the re-ratification" or revision require a supermajoritarian or majoritarian vote? (3) If supermajoritarian, wouldn't 60 percent be a better balance between too easily ratifying the changes by majoritarian vote and making it too difficult by retaining the present procedure? (4) Should the people, Congress, or the states, or all of the above be involved in this process of periodically re-ratifying (revising) the Constitution? One possible benefit of such an entrenched procedure would be that citizens would have to take the Constitution more seriously than they now do. Another would be that constitutional discourse and debate would be a necessary feature of legislative battles, commentary on political developments, punditry and political discourse generally. Of course, there is a down side also. A rigid stability--rendering it virtually impossible to change the glaring defects in the Constitution--might be lost. But then again good riddance. On 19 October 2007 a mock second constitutional convention will be held in Washington, DC.
posted by Robert Justin Lipkin at 10:48 AM
4 Comments:
An idea worth entertaining for sure. Certainly the re-ratification process would bring the Constitution to the front of the nation's collective mind which has its obvious benefits. The wealth that our founding fathers granted to us by way of this document is immeasurable. It is a difficult for a child understand, much less appreciate, the struggle of the parent lest they experience a struggle of their own. Questions remain though. What would preclude the takeover of such a process by the factions that threaten our current system? What process could be incorporated that would assure the country that the convention would be guided by honorable people and the highest intentions?
We need a real convention - the nation's first Article V convention; learn more and join up at www.foavc.org
Why would we want to do this? Do we really think we could do a beter job than the Founders?
One of the sillier ideas I've ever seen.
There's no doubt regularizing the process of constitutional change is not risk free. But that's the essential nature of republican democracy. In a republican democracy there can be no guarantee that the views of "honorable people" and "the highest intentions" will prevail. Why? Because in a free society no one can guarantee that a particular view will (or should) win the day. But that's precisely the situation we're in now. For opponents of abortion, the right view has been thwarted for over thirty years and millions of babies have been killed as a result. For opponents of the War in Iraq, the presidency has become a soft dictatorship. We are unable to extricate ourselves from this conflict despite a robust majority wanting to do just that. The best we can do is to put in place a process that responds to deliberative change. That's precisely the process we do not have now. Robert Bork once said that except of course, where the Constitution explicitly constrains the majority, those who seek to prevent the views of the majority are frightened of democracy. Are we frightened by democracy? Do we trust our views sufficiently to believe that they can prevail in a deliberative forum? If not, what’s the answer? Certainly republican democracy is not the answer. Constrained democracy makes it possible for the conservative, liberal, or progressive views to fail. What will prevent such a failure? Monarchy, political aristocracy, theocracy, and dictatorship certainly can. So fear of losing political and constitutional conflicts and institutionalizing that fear in one’s constitution seems the first steps toward abandoning democracy. Why would anyone want to start down this path? See Sandy Levinson’s answer to this last question here: http://www.essentiallycontestedamerica.org/2007/12/24#a2230
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