In a 2010 interview on MSNBC, liberal Washington Post writer Ezra Klein said that the U.S. Constitution “is confusing because it was written more than 100 years ago.” Klein’s historical timeline was a little off, but he was at least correct that some parts of the Constitution are getting up there in years. Is the document getting too old for our modern world? Is it time to call a new constitutional convention and start from scratch?
At the great Library of Law and Liberty website, two distinguished legal scholars are debating those very questions. First up is University of Texas law professor Sanford Levinson, who makes the case for what he calls a “Jeffersonian” approach, which involves “relentlessly asking whether the Constitution is serving us well.” Levinson writes:
Thomas Jefferson was wiser than he knew when he counseled against treating the Constitution as similar to the “ark of the covenant, too sacred to be touched” or, more importantly, to be changed. All constitutions are human artifacts, and one must always remember the propensity to error of even the finest human beings (as we might concede most of the Framers to have been). They were creatures of their own time, well aware that the future would bring different realities and almost certainly require different solutions to problems of government, including basic questions of design....
We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America.
In response, New York University law professor Richard Epstein rejects Levinson’s plan, declaring that he “would fight against this general approach with every fiber of my being.” Why? Here’s Epstein:
It is not because I think that the current state of affairs is ideal, when manifestly it is not. It is rather that I think that 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....
The overall message is this. The convocation of new conventions will introduce a new degree of uncertainty that is likely to make matters worse not better. It is commonly said of taxes that old taxes are better than new ones, because people can adapt to them. That is true of constitutions as well.
I’m with Epstein on this one. Rather than wasting time and energy on drafting a whole new constitution, why not focus on getting the government to actually follow the one we’ve got?