CLAY JENKINSON: The Future In Context — Is It Time For A New Constitutional Convention?

The 250th birthday of the United States is coming in four years. Already the great cultural institutions of America (National Endowment for the Humanities, Library of Congress, Smithsonian, prestigious universities) are thinking about the appropriate way to celebrate this important anniversary. We can expect fireworks, parades, festivals, orations — and protests, criticism, demands for a full-on national recognition of all that has gone wrong in our history. Some will argue strenuously that “celebrate” is the wrong term; we must merely “commemorate” lest we be seen to endorse the errors and oppression of America’s past.

To Celebrate or Commemorate

Beau Breslin holds the Joseph C. Palamountain Jr. Chair in Government Professor at Skidmore College, a private liberal arts college in Saratoga Springs, N.Y. (skidmore.edu)
Beau Breslin holds the Joseph C. Palamountain Jr. Chair in Government Professor at Skidmore College, a private liberal arts college in Saratoga Springs, N.Y. (skidmore.edu)

To tell the truth, I’m already dreading “America at 250.” It is certain to become an intense flashpoint in the Culture Wars. The left will want to talk about racism, sexism, homophobia, environmental damage, dispossession of Native Americans, exploitation of workers and the hypocrisy of white men like Thomas Jefferson. The emphasis of the left will be on the “unfinished business” of America. The right will denounce any serious criticism of our national history as “apologizing for America,” “America hating” and “Critical Race Theory.” I so don’t want this important holiday to be a shouting match about what America signifies.

I have an alternative semi-quincentennial plan that I came to in a fascinating conversation with the scholar Beau Breslin of Skidmore College, about his new book, A Constitution for the Living: Imagining How Five Generations of Americans Would Rewrite the Nation’s Fundamental Law.” Professor Breslin took seriously Thomas Jefferson’s vision of a nation that would tear up its constitution once every generation and begin again. He tried to imagine how American history would have been different had we hearkened to the Sage of Monticello’s insistence that each generation formulate its own constitution. Jefferson may be a problematic historical figure these days, but his vision of what keeps a republic fresh deserves more serious attention than it has received.

A New Constitutional Convention

What if we wrote a new Constitution of the United States in the summer of 2026? Forget the giant American flags that cover sports stadiums and the crowd buzzings of the Air Force Thunderbirds. (We can do both, of course.) What if we attempted to reinvent ourselves as a way of celebrating a quarter millennium of freedom? We have much to cherish in the Constitution that was written in the summer of 1787 and ratified a year later by the American people. But it’s outdated in some important ways, imperfect at least in the way we currently interpret it, and of course, it was written by 55 privileged white males, with no representation by women, African Americans, Native Americans or average citizens who had to work hard for a living. How can a constitution that was oblivious to well more than half the population be regarded as credible in this uniquely multicultural republic?

We need more than 55 delegates this time. With professor Breslin’s help, I recommend a convention of 250 delegates (one for each year of our experiment), most of them just regular Americans, but including two seasoned political figures or experts from each state. We need at least “some delegates” with governing experience at the convention. The convention could meet in Philadelphia, where it all began, or perhaps it should be far from the corridors of power, money and culture. Let’s say Omaha, Neb., for example, or Tulsa, Okla., or Amarillo, Texas.

Better the Devil We Know?

Whenever I suggest to an audience anywhere in the country that we call a new constitutional convention, there is an instant and loud outcry against the idea. “Can you just imagine how it would be hijacked by media, by lobbyists, by interest groups, by the craziest people with the most extreme views?” they say. “We’d never get anything better and probably something much worse!” “Better to live with the imperfect thing we have than enter that house of horrors.” This automatic reaction is understandable, but I think wrong. The experience of other nations that have successfully written new constitutions in recent years — CanadaSouth AfricaChile — should give us confidence that we are up to it.

Sophisticated algorithms now available can produce a program for finding a truly representative delegation — some ideal mix of gender, ethnicity, age, lifestyle, orientation, spiritual views, economic status, geographies and political affiliation. Anything less representative would lack credibility and legitimacy.

Essential Conditions

For this new convention to succeed, we’d have to adopt and adapt two key ideas from the Founding Founders in Philadelphia. First, the delegates would have to live sequestered, in secrecy, like jurors in an important case. The gag rule that the Philadelphia Convention adopted was rigorously observed by the delegates. Any commitment to transparency (cameras in the courtroom) and intense media attention would make their work impossible. Second, we’d want almost immediately to constitute the delegates as a “committee of the whole,” so that ideas could be debated freely over long periods without binding anyone to any significant vote until all possible options had been explored.

Writing a constitution is a bit like turning the lens of a kaleidoscope. When you adjust one thing (say the powers of the presidency) all sorts of other things (the electoral college, the makeup of an impeachment jury, the mechanism of the veto) reshuffle in ways that are not always predictable. You cannot address one issue without disturbing a range of others. Only by working as a “committee of the whole,” were the 55 “demigods” of Philadelphia, as Jefferson called them, able to hammer out a working constitution between May and September 1787.

Congress would have to make all this possible by passing an enabling law that forced employers to grant their workers a four- or five-month leave of absence with full pay (moneys provided by Congress). This would be a burden to individuals, families and business, but every delegate would know that they were part of the renewal of the American republic.

The first two or three weeks would be a series of careful orientation sessions, led by historians, constitutional theorists, veterans of constitutional conventions in other countries, political scientists, demographers and geographers.

Why Do We Need a Constitutional Convention?

Our constitutional system is fractured, perhaps broken. A national government is meant to represent the entire citizen base of a nation and to work earnestly to address the challenges that great nations must face. We all know that our Congress is nearly paralyzedcorrosively partisan and unrepresentative of a large percentage of the American people. The two parties are so profoundly addicted to power that they would rather have the country suffer, if they can blame it on the opposition, than work to solve our problems.

Thomas Jefferson understood that governments do not reform themselves. They must be reformed. That’s why Jefferson recommended, in a famous letter to his principal compatriot James Madison, that we tear up the Constitution once ever 19 years and begin fresh. “The earth belongs in usufruct to the living, not the dead,” Jefferson said. Madison was, to put it lightly, skeptical.

A summary of how ABC News covered the 200th anniversary of America’s independence. The question for us is whether to put the fireworks, picnics and bunting aside in favor of an overdue national conversation.

The new framers would probably conserve much that is solid in our current Constitution: separation of powers, checks and balances, a bicameral Congress, the bulk of the Bill of Rights. The history of constitutional conventions indicates that the reformers tend to build upon the legacy of what is already there. They save their energy to address issues that the existing constitution cannot adequately address.

Here is a short list of things we need to think about, and perhaps reform.

  • The problem of the Senate. There were good reasons to guarantee each state two senators in 1787, but the Senate is broken now, in part because it is now so profoundly unrepresentative but also because the filibuster means that the Senate no longer works by a simple majority — a vote of 51-49 carries the day — but requires a supermajority (61 votes) to pass legislation. This is decidedly not a concept enshrined in the Constitution of 1787. The current Senate structure permits it to be controlled by a minority, often a minority of the least populated states. North Dakota, with 760,000 citizens has two U.S. senators. California, with 40,000,000 citizens, has only two senators. That gives a North Dakota senator approximately 45 times more powerful than a California senator. It effectively disenfranchises 39,240,000 Californians.
  • The Electoral College. The winner of the Electoral College vote is now often the candidate with significantly fewer popular votes. We all understand that this is how the system was devised, but the creation of the electoral college had more to do with the vast geographic spread of the United States and the weak communications infrastructure of the time than with any solid concept of how to choose a national executive. The Electoral College does not necessarily need to be abolished — we all understand the arguments for its continuance — but it needs to be reformed.
  • Impeachment. We have had four presidential impeachment trials. Not one has been successful. Does anyone believe that in more than two centuries no president deserved to be removed from his office? The founders thought the Senate would sit in thoughtful, open-minded, deliberate judgment of the impeached executive. These days, the Senate behaves like a joint meeting of two-party caucuses. Party loyalty, not the facts on the ground, determines the outcome. The impeachment clause should either be reformulated or expunged.
  • The Pardon clause. The idea was that the president could show mercy to people who have suffered enough or whose trials were doubtful, or after legal standards changed. What we have now is a travesty of cronyism.
  • Amendments. We’ve had just 27 in 234 years, the most recent of which was in 1992 (about congressional salaries). If you exclude the first 10 amendments, the Bill of Rights (1791), and remove such negligible amendments as 18 and 21 (prohibition and repeal), we’ve had fewer than a dozen fundamental adjustments of the constitutional order since the 1788 ratification. The genius of the amendment process is to set the bar so that it is very difficult to accomplish, but not so difficult that it never happens. Does anyone think there is a sufficient supermajority now (two-thirds of both houses of Congress, three-quarters of the states) to pass an amendment? We should consider lowering the bar, but not too much.
  • The Second Amendment. At some point, three mass shootings from now or 300, we are going to have to have a sober national conversation about the epidemic of gun violence in America. Does anyone think the founders, if they were alive in the era of the AR15, would write the Second Amendment as a practical absolute, enabling a single individual to own more firepower than the Continental Army possessed in 1777? The Constitution cannot be allowed to be a suicide pact. We can protect gun ownership rights and still set some limits on the firepower any single individual can accumulate.

Other historians and political theorists may have other suggestions. The Ninth Amendment needs clarification, and the Fourteenth, and the Tenth. We should have a national conversation about how much separation we want between church and state. And much more.

A Fabulous Birthday Gift to Ourselves

If we undertook drafting a new constitution, think of what a monument it would be to the capacity of the American people, the purposes and principles of a republic and the confidence of America in its ability to talk about fundamental issues in a mature and rational way; to forge “a more perfect union,” as the great Preamble confidently declares. Think of what a great thing it would be if on our 250th birthday we stepped back to reimagine ourselves and attempted a new constitutional structure equal to the dynamism of America, our remarkable diversity and our breathtaking capacity for innovation, invention and creativity.

The naysayers will find plenty of reasons to condemn this suggestion, and I doubt that we have the national will to take the risk. But in my view, the risk of trying to bandage our current system back together is greater than the risk of a thoughtful reboot. Who would try to make Windows 2.0 work decades after it proved to be too primitive and limited to perform the functions we expect from computer software? Jefferson’s formulation of this concept came in a letter to Samuel Kercheval in 1816:

“Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. … We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

More than any of the other Founding Fathers, Jefferson understood that trying to govern a third of a billion people in the 21st century using an instrument that was fashioned in the 18th century, would be essentially impossible. The founders lived in a 3 mph world. A high-tech weapon (an 1803 Harpers Ferry rifle) took 30 to 40 seconds to reload. Women were regarded as legal appendages of the primary males in their lives.

The founders barely understood the circulation of the blood. Dr. Benjamin Rush, a signer of the Declaration of Independence, used two methods of treating the sick: bleeding and purging. Dr. Franklin managed to prove that electricity and lightning are related, but people still lighted their homes with candles and whale oil lamps. Most Americans were comfortable (enough) with slavery. Steam was just beginning to be used to power boats and mills, but the age of the railroad was still 40 years out, and the internal combustion engine was a century in the future.

It is true that our core political principles don’t have the same temporary shelf life as VHS video, Pac-Man or the Hula-Hoop, but the world of today is profoundly different from the world of James Madison, in his wig and buckled shoes, that it is now different in kind as well as in degree. What would the founders say about cloning, GPS surveillance, an MRI, cyber porn, the morning after pill, nuclear weapons, a Mars landing and cruise missiles?

The Earth, said Jefferson, belongs to the living.

We Can Do This

I believe we can do this. If there is any people on Earth who are capable of reinventing themselves, we are. We are up to the task. We desperately need to make some serious changes to the existing Constitution. We can always refuse to ratify the new constitution if it fails to harmonize with the will of the American people. That’s why the framers submitted their work to the people for explicit ratification.

A new constitutional convention could only do us good. We need to find the confidence to undertake a formal national renewal, based on a gathering of a truly representative body of American citizens.You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour,” and the Governing podcast, Listening to America.” Clay’s most recent book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is available through AmazonBarnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.

3 thoughts on “CLAY JENKINSON: The Future In Context — Is It Time For A New Constitutional Convention?”

  • Doyle Lentz July 24, 2022 at 9:57 am

    If we don’t do what you suggest I doubt will be able to celebrate the 300th !

  • Ramdy July 24, 2022 at 3:40 pm

    We can’t seem to compromise on single issues, I can’t imagine how we could compromise on all the issues we face today..

  • MYLO CANDEE July 24, 2022 at 9:03 pm

    Fat chance of that happening. Politicians in State and Federal Legislators would have to give up their power to the Mob on the other side.. Oonce upon a time ago North Dakota’s Good Government Guys tried to modernize out State Constitution. It only confirmed the existing divisions of opinions are very real, and don’t expect 300,000 voters to compromise when 150 Legislators can’t.


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