Wednesday, April 29, 2015

Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution

This paper by James E. Fleming is the fifth from the first-ever WLR Online Symposium. It comes out of the conference November 7-8, 2014 at the UW Law School on "Is it Time to Rewrite the Constitution?" presented by the Wisconsin Center for the Study of Liberal Democracy.
"Is it time to rewrite the Constitution? We should break this question down into two parts: (1) is it time to rewrite the Constitution by adopting particular amendments?, and (2) is it time to throw out the Constitution and write a new one by holding a constitutional convention, as Sandy Levinson has urged? A further question is to what extent does the Constitution, and our constitutional practice under it, already permit or require 'rewriting' as we build out our framework of constitutional self-government over time? Despite claims by some originalists that the formal amending procedures of Article V are the exclusive legitimate means for changing the Constitution, living constitutionalists like David Strauss and Bruce Ackerman have gone so far as to argue that formal constitutional amendments are largely irrelevant to such change. Strauss argues that common law constitutional interpretation, not amendment through the formal procedures of Article V, has been our primary means for constitutional change. Ackerman argues that the six-phase higher lawmaking procedures outside Article V that he elaborates have been the primary means whereby We the People have 'hammered out' such changes. To the extent that living constitutionalists like Strauss and Ackerman are right, perhaps we do not need formally to rewrite the Constitution to realize constitutional change. Perhaps we already do well enough through 'rewriting' it informally."