While I struggle with the Alito Court’s convenient professions of originalism, I respond with aghastery to the Constitution-wreckers like Senator Maggie Sutton who want to call an Article V Convention so ALEC can Swiss-cheese the Bill of Rights and dismantle the federal government. But Skidmore College poli-sci prof Beau Breslin says that if we got our Jefferson on, we’d call a Constitutional Convention every generation to unshackle ourselves from the Madisonian tyranny of the dead:
Breslin: I had been thinking about the famous debate between Jefferson and Madison about how the earth belongs to the living, and I began wondering what would have happened if Jefferson had won that debate. We started projecting the ways in which American history would’ve changed, and what those constitutions would’ve looked like if they’d been rewritten every generation.
Governing: Madison wrote an extraordinary letter that essentially crushed Jefferson’s idea. Was Madison right?
Breslin: Madison certainly won the debate, because here we are 230-plus years later still talking about the 1789 Constitution. I was fully Madisonian when I started the project, but I’m not so sure anymore because our Constitution is no longer doing a good job of constituting this polity. Madison won because Jefferson was unable to get the national conversation. There were states that had mechanisms like sunset clauses every 20 years or so, but he was never able to convince the nation to do that. But there’s brilliance in Jefferson’s suggestion that each generation write its own constitution. The core of his idea was that it’s another form of tyranny for a people to be governed by a document written by previous generations. Whether or not we could actually get together in 2022 or 2026 and write a good constitution is another conversation, but that doesn’t take away from the brilliance of Jefferson’s idea [Dr. Beau Skidmore, interview with Clay S. Jenkinson, “What If Every Generation of Americans Wrote Its Own Constitution?” Governing, 2022.09.04].
My defense of the current Constitution rises in part from the thought that if it ain’t really, really broke, don’t fix it. We’ve done a fair job of making the Constitution work, with rare amendments, within the framework of the original language Jefferson and his fellow Founders be-quilled us. But Jefferson himself was willing to yield the quill to future generations to reconstitute their government in response to conditions Jefferson Socratically understood he could not foresee. Even if a convention 50 or 500 years out would resolve that Jefferson’s Constitution was still working well enough, Jefferson would only have wanted his text to stand by the active ratification of future practitioners of democracy, not by submission to the ghost of Jefferson as eternal, unimpeachable king.
However, Jefferson’s desire for regular constitutional renewal depends on the people being as smart and civil as Jefferson and his colleagues (not to mention more representative). My uneasy response to calls for a Constitutional convention also rises from my lack of trust of a lot of the people lobbying for that convention. We have a vocal fringe trying to undermine confidence in elections and take over election offices to rig elections in their favor, and that vocal fringe has a lot of overlap with the corporate fascists who want to rewrite the Constitution. I don’t trust them any more than they trust me (or you, or any other voter who just wants to mail in a ballot or drop a ballot in a nice convenient yet secure drop box outside the courthouse); can we convene representatives of such diverse and distrustful interests to craft a constitution as durable and effective as our current governing document?