Press "Enter" to skip to content

Jefferson More Eager Than I to Regularly Rewrite the Constitution

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:

BreslinI 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?


  1. larry kurtz 2022-09-07 07:25

    Mr. Jenkinson describes himself as an historian who initially sided with Justice Marshall in Marbury v. Madison, thought of Jefferson as quirky, mired in the Enlightenment.

    In 2015 Republican “South Dakota Governor Dennis Daugaard signed into law a measure that would limit the authority of a constitutional convention delegate from the state. The bill serves as a companion measure to a proposal that calls for a convention to amend the U.S. Constitution to require a balanced federal budget. The bill would also require convention delegates from the state to take an oath affirming they wouldn’t support a rogue amendment.”

    So if 34 states saw fit, they could convene their delegations and start writing amendments. Some believe such a convention would have the power to rewrite the entire 1787 Constitution, if it saw fit. Others say it would and should be limited to specific issues or targets, such as term limits or balancing the budget — or changing the campaign-finance system or restricting the individual rights of gun owners.

  2. John 2022-09-07 08:06

    Perhaps the strongest argument for Madison’s position are the 18th (1919) and 21st (1933) Amendments. They first enacted prohibition, then repealed it.
    The US caught itself up in a massive case of well-intentioned group think. Prohibition proved being a stupid idea and a dumber amendment.

    It’s likely though, that the better argument is somewhere in the middle between the Jeffersonian and Madisonian arguments. Perhaps the Founders could / should have designated a constitutional convention every 50 years and ascribed a truly representative formula for its membership. None of this one-vote-per-state crap. I don’t want my small state to over-represent its meager worth to the nation.

    “Mortal Republic: How Rome Fell Into Tyranny”, by Edward Watts is a 2018 book that . . .”offers a new history of the fall of the Roman Republic that explains why Rome exchanged freedom for autocracy. For centuries, even as Rome grew into the Mediterranean’s premier military and political power, its governing institutions, parliamentary rules, and political customs successfully fostered negotiation and compromise.
    By the 130s BC, however, Rome’s leaders increasingly used these same tools to cynically pursue individual gain and obstruct their opponents. As the center decayed and dysfunction grew, arguments between politicians gave way to political violence in the streets. The stage was set for destructive civil wars — and ultimately the imperial reign of Augustus.
    The death of Rome’s Republic was not inevitable. In Mortal Republic, Watts shows it died because it was allowed to, from thousands of small wounds inflicted by Romans who assumed that it would last forever.” -Amazon review

    Watts indirectly shows that a republic’s institutions and processes must remain viable, legitimate to sustain the republic. Because, short-term selfish people will find and create ways to abuse those institutions and processes for personal gain to the detriment of the republic. Jefferson’s argument to refresh the cold, dead hand of the Constitution is viable, but perhaps his once-a generation timeline was more aspirational than practical (as Madison critiqued).

  3. O 2022-09-07 08:26

    The Real rub to an Article V Constitutional Convention is who get to be the representation. Given the GOP (and more-and-more the MAGA influence of that institution) undemocratic take over of state legislatures through gerrymandering, the disproportionate representation of Conservative/Red/GOP/MAGA interests make this not-at-all a rewriting of contemporary society’s interests. Instead, it would be the fast track for the wildest dreams of the repressing minority. Given the Conservative/Right/GOP/MAGA success of the Supreme Court, the Federal Courts, and the state legislatures, and the Senate, a CON CON all seems like running up the score at this point. Make not mistake, this is not at all about having the people’s will rule. It is to further entrench White Nationalist Theocracy.

  4. John 2022-09-07 08:27

    The Roman Senate! had an age limit — 65. That with the benefit of common sense. They certainly lacked the quantifiable medical science that cognition measurably declines, etc. (That’s why we retire commercial passenger airline pilots and 65 and air traffic controllers even younger.)
    Perhaps the greatest contribution one could make to a Constitutional revision would be a mandatory retirement or exclusion from office of presidents, congress, judges, and justices aged 65 and over. That will not fix everything. That will keep the nation more accountable to the present and future, and less strapped to the past and the cancerous “the way we used to do it”.

  5. larry kurtz 2022-09-07 10:21

    A constitutional convention or convention of the states could be a catharsis or prove that a pure democracy is mob rule.

    When the US ended the draft in 1973 the number of mass shootings began to rise. Compulsory military service or police training might indeed be one way to slow gun violence. Enlistment could look like the Swiss model where soon after high school eighteen year olds would join for two years then re-up or enroll in the college or vocational training of ones choosing.

  6. David Bergan 2022-09-07 10:58

    I’m curious how Jefferson planned to carry out this new-Constitution-every-generation plan? An immutable super-Constitution that oversees the making of generational Constitutions? Otherwise what’s to stop, say, the New Dealers from making their Constitution permanent? (Kind of like once you elect Adolf as chancellor, you never get another election.)

    Kind regards,

  7. larry kurtz 2022-09-07 11:03

    Exactly. What would prevent any state from writing itself out of the union or outside the reach of federal law?

  8. DaveFN 2022-09-07 11:43


    The average life expectancy in ancient Rome is estimated to have been about 40 years, therefore 65 years was exceptionally old.

    The Latin word for ‘senate’ is ‘senatus’ which derives from ‘senex’ or ‘old man.’ Same derivation as senile.

  9. Whitless 2022-09-07 11:44

    Any amendment to the constitution requires ratification by three-fourths of the state legislatures or three-fourths of constitutional conventions called in each state for ratification. Conservatives have expended considerable resources, often successfully, to convince voters to elect Republican governors and Republican dominated legislatures. If they ever achieve control of three fourths of the states, then the union of this republic will likely be threatened because of the ability to ratify amendments of their choosing. The U.S. Constitution has largely served the nation well because it was based upon compromise, an unacceptable word for many Republicans and left leaning progressives these days.

  10. bearcreekbat 2022-09-07 12:08

    The Jeffersonian view seems to have been reflected in the judicial doctrine treating the US Constitution as a “living document” that had to be interpreted within the context of modern times rather than when it was written.,document%20is%20not%20formally%20amended.

    Right wing justices and politicians have seized upon this concept to accuse modern judges that accept this doctrine of arbitrarily deciding what is best for society despite the supposed contrary views of the majority of voters. And although for most of the later 20th century this doctrine evolved to be one of the best protections of individual rights from suppression by a majority, the right wing viewpont has long been that this is an anti-democratic travesty. This right wing effort, in turn, convinced voters to elect politicians based on the promise of installing what in fact are state-facist leaning judges like Trump’s appointees to the SCOTUS. We now seem to be condemned to a 21st century with a SCOUTUS Justice majority that will affirm whatever State oppression a majority (or as others have pointed out a minority that has managed to seize the majority in power due to gerrymandering and voter suppression) decides to inflict on individuals living of 20th century constitutionally protected individual rights.

  11. John 2022-09-07 12:15

    DaveFN, yes, that was about the “average”. The problem with the “average” is it’s skewed downward because of the high death rates of the young. As recent as 122 years ago in the US 20% of those born died before their 5th birthday. The death rate of the young was certainly much higher in Roman times. Roman ways of war and slavery also artificially reduced the “average” age of death.

  12. DaveFN 2022-09-07 15:35


    Precisely. Many demographic factors are involved to calculate such an average, and scholars differ.

    Considering tombstone analysis only, John D. Durand writes in “Mortality Estimates from Roman Tombstone Inscription:”

    “The distribution of age at death, inscribed on Roman tombstones is biased by underrepresentation of children’s deaths [including infanticide], exaggeration of ages at death beyond age forty or fifty, and probably by understatement of younger women’s ages at death. The inscriptions for males dying between the ages of fifteen and forty-two provide the best basis for mortality estimates. On this basis, expectation of life at birth for the urban population of the western Roman Empire during the first and second centuries is estimated at between fifteen and twenty-five years. The expectation for the whole population of the Empire was probably about twenty-five or thirty years.” –American Journal of Sociology, Volume 65, Number 4, Jan., 1960

    Parkin, in his “Old Age in the Roman World: A Cultural and Social History” (Johns Hopkins University Press, 2003), however, notes that “life expectancy at the age of 60 years is of the order of 9-11 years, and the proportion of a stationary population over the age of 60 years remains in 5-7% range.”

    That the Roman governing body was termed “Senate,” ie, evidently comprised of older men relative to the general population, bespeaks if I do say so myself, a respect for the life experience of its members.

  13. Arlo Blundt 2022-09-08 15:51

    Well..there’s two sides to this age question. Thank goodness Justice Ginsberg lived as long as she did, Hugo Black and Thurgood Marshall wrote brilliant opinions in their old age, and, months before his death from cancer, Justice Harlan, a judicial conservative,wrote the opinion that freed Mohammud Ali. I have a soft spot for the wisdom of the elderly.

  14. Arlo Blundt 2022-09-08 16:22

    And then there is Iowa Senator (I may be 90 but I’m running again, I’ve got a storehouse full of Attends)) Chuck Grasslie.

Leave a Reply

Your email address will not be published.