Sunday, November 14, 2010

Why I think a new Constitutional Convention a bad idea

An old classmate sent me a circulating email recommending a Constitutional Convention to rewrite the U.S. Constitution. It included a couple of reasons why the author thought the Constitution should be rewritten (one of them frankly in error) but basically the argument was that we keep throwing out one batch of politicians after another and lots of us are still mad as hell about what the government is doing.

I think that a new Constitutional Convention would be a very bad idea.

  • We were very lucky to have the founding fathers who drafted the Constitution. Do you think we would find others comparable to Madison, Hamilton and Franklin to draft a new Constitution or of George Washington to chair the Convention? I rather doubt that we would do as well. 
  • There is probably an optimal size for a group drafting an important document and suspect that any modern U.S. Constitutional Convention would be farther from that optimum than was the original Constitutional Convention.
  • There were no parties in 1787 and at that time the founding fathers believed that visibly seeking office was ungentlemanly. I doubt that a modern Convention would be as devoted to framing as good a document as possible rather than seeking a document that promoted factional gains. Parties would be dominated by the fear of loss rather than the hope for gain.
  • Generations of office holders have evolved a body of practices that work in implementing government under the current Constitution. Presumably all of that would be lost. Not only would it take time to evolve a new body of practices, but it might not be done as well. Would we get another George Washington to set the precedents as chief executive? Would we get another John Marshall to set the precedents for the judiciary? How would we quickly replicate the progress made in legislative process by generations of legislators?
  • There has been more than two centuries in which the existing Constitution has been amended and interpreted, making it better than it was. Think about the time when the Constitution was interpreted by the Supreme Court to mean that slavery was legal and African Americans were not citizens, or the time that the Supreme Court said that the Constitution prohibited government from regulating to prevent the exploitation of workers. All that would be lost and we would have to start over.
  • The process of ratification of the original Constitution was exceptionally democratic and thoughtful, and that ratification was a close thing. It is not clear that a new Constitution (drafted by real people in a real world) could be ratified at all, much less that the process would improve lead to acceptance of improvements as the Bill of Rights was an improvement to the original Constitution.
  • The process of redoing the basic document of our government would obviously take time and during that time there would be great uncertainty as to who would benefit and "whose ox would be gored"; a long period of such uncertainty would be bad for business, bad for government, bad for foreign policy and bad for domestic policy.
If one were to embark on so perilous a process as the rejection of the Constitution to draft a new one, the need to do so would have to be very great and very widely agreed, and I think the purposes of the redrafting would have to be explicit and comprehensive. Even in such a case, it would probably be better to amend the current document.

Those who would lightly propose to rewrite the Constitution should think again and think more deeply.


Anonymous said...

The author obviously doesn't understand a convention cannot write a new Constitution. It can only submit proposed amendments. Before he makes his decision, he should go to and learn the facts including how many applications, over 700, have been submitted by the states for a convention.

John Daly said...

According to Wikipedia, a Constitutional Convention may be held either for the purpose of writing a constitution or amending a constitution. While Article V of the Constitution allows a convention to be called to amend the constitution, the original Constitutional Convention that wrote the Constitution did not need permission from the Articles of Confederation and Perpetual Union to draft a document that would when ratified replace the Articles. So too, were the states to decide to hold a convention to draft a Constitution to replace the current one who would stop them?

On the other hand, I failed to clarify that my old classmate seemed to be recommending a major overhaul of the current Constitution, not a simple amendment. Sorry for the omission.