And what in our current climate makes you think anything better is possible?

Do you mean "possible" in the sense of "is it possible that the Constitution could be improved upon"? Or in the sense of "would what we actually came up with be better"?

I'm figuring you're asking the second question, not the first, and I do see your point. But at least getting back to clarity as to what the damn thing means would be nice.

And how. I was taken aback by the mystical attachment some here had for the natural born requirement for the presidency, let alone Geohagan's wholly convincing project for abolishing the states. JM will rule her own planet before that happens.

What we need is for our constitution to be the amendable act of somebody else's Parliament.

Geohagan's wholly convincing project for abolishing the states.

Link?

Any attempt to reword the second amendment right now would result in something much worse, like a constitutional prohibition on any law to regulate any tool of violence, or perhaps mandatory gun ownership.

Link?

TNR about December '92, obviously not online.

Lincoln should've called for a new constitutional convention, or else just rewritten the fucking thing himself. Failing that, FDR. Now it seems too late.

Have you read Miracle in Philadelphia? I think were lucky to have what we have, flawed as it is. Reopening Pandora's box in the form of a new Constitutional Convention is guaranteed frustration and eventual insanity for the participants.

8: Who said anything about a new convention? We need to find our new constitution on buried golden plates, which subsequently disappear, but which the men and women of Unfogged can swear to have seen and faithfully transcribed.

What we need is for our constitution to be the amendable act of somebody else's Parliament.

Don't look at us. You broke it, you own it.

The new constitution must have a specific provision concerning oozy rats in sanitary zoos.

This is really one country.

That's the flaw in the argument. This isn't one country and attempting to treat it as such really messes things up. For example, the often mentioned disparity between infant mortality in the US and in "other Western civilized countries" doesn't mean that the White and economic middle and upper class needs more prenatal care nor is the deep South very much like New York City or Los Angeles.

I'm with TLL, trying a re-write would be a major disaster. Diversity is good, experimentation is good, and people should vote with their U-Hauls as well as their ballots.

To expand on 1 & 2, whatever document emerges must be endorsed in some democratically acceptably fashion. I can imagine all sorts of better documents being written; I can't imagine a better document becoming the new constitution. I'll go with the guys in wigs.

I'll go with the guys in wigs.

But what I do on weekends is none of your business anyway, LB.

IDP nails it in 9. It is, though, not entirely unproductive to talk about eliminating things like the electoral college and lifetime judgeships.

I agree with TLL in 8.

LB, you may be interested in The Frozen Republic: How the Constitution is Paralyzing Democrazy. (Powell's link.)

I mostly agree with 8 and 12. That is not to say that the constitution can't change. There have been several amendments during my lifetime. It's not like it does not change.

I'm with IDP and mrh. Assault weapons and fossilized supreme court justices are both bad, but not bad enough to justify making "let's change the constitution!" a viable legislative tactic. It could be better, but it could also be a whole lot worse.

I know that yglesias has an argument about the filibuster saying that, on average, the enactment of new legislation will favor liberal interests. I don't really know what to make of that, but I suspect that even if it's right it wouldn't apply to an infrequent and extreme measure like passing amendments (no matter how much more frequent and accessible it became through increased use).

Can we reconsider membership first? That would ease most of my fears. Something along the Jefferson Davies plan?

Old times there are not forgotten, look away!

"Be fair, and if you can't be fair, be arbitrary". That's the Constitution for you, in the words of William Burroughs about someone else.

I'm not a constitutionalist at heart, but it seems so integral to our system that I end up making constitutionalist arguments sometimes anyway. When the Constitution is against me I have to take my lumps, so if the Constitution is with me I might as well whack people with it.

Feh. The Bill of Rights has a bunch of things transferring power from the government to the people in a way that makes it harder to run the country. It'd be much more convenient for everyone if when you were suspected of a crime, the government could compel you to admit if you did it or not. The Home Office in the UK is awfully fond of their ASBOs, which remove the need for a pesky jury trial in cases where someone is obviously guilty. The Second Amendment is meant to answer the question: "Is the government going to permit law-abiding people to have deadly weapons to protect themselves and those they care about." If we want to change the answer to "No, criminals are too dangerous and law enforcement in big cities is too difficult", there's an established procedure to change the constitution.

The Second Amendment is meant to answer the question: "Is the government going to permit law-abiding people to have deadly weapons to protect themselves and those they care about."

I don't think that's it.

A new constitution is fine as long as I get to write it. Otherwise I have my doubts.

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. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. 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. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.

Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. And lastly, let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure. It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves. But how collect their voice? This is the real difficulty. If invited by private authority, or county or district meetings, these divisions are so large that few will attend; and their voice will be imperfectly, or falsely pronounced.

The process of writing a new constitution would be an occasion to laud and enshrine every bad behavior we have or want, from the merely unwise to the outright evil. I believe my own beloved South demonstrated this last time we took up the matter.

Good things that might come of it: an end to the electoral college.

Bad things that might come of it: Article CCLXIV: The USA PATRIOT Article; also, Article CCLXV: The Sanctity of Marriage and Articles CCLXX through CCLXXIX: Ten Commandments, Awesome or Awesomest?

Possibly not. But I think that there is a definite element of "it would be more convenient for the federal government if the people didn't have the right to bear arms, but they do anyway, because the people are the bosses in this arrangement."

or perhaps mandatory gun ownership.

Sweet.

I've changed my mind. We need to get rid of the right to make a right turn on red without regard to what's happening and we need to enshrine the right of pedestrians to wear explosive belts detonated on any impact sufficient to seriously damage said pedestrian. I'll accept some limitations such as the shaped charge must be oriented towards the offending vehicle.

28: along with, say 2 years mandatory service for training, and criminial liability for anyones improper use of the arms you are entrusted with. Plus much higher penalties for improper handling/storage/etc.

still sweet?

I'm promised my own planet real soon now. Any minute.

Geohagan's wholly convincing project for abolishing the states.

Searching the New Republic back to 1990 on an academic databse shows no results for Geohagan, Geohegan, or Geohagen. In fact "Geohagan" turns up nothing for all publications in EBSCO back to 1990. Is it an older plan or is the spelling different?

Shearer pretty much gets it right in 24 (gulp). There's a lot to be said for rethinking some fundamentals--electoral college, Senate representation, life tenure for judges--but way too many of our fellow Americans are pig-ignorant for us to place any trust in what would come out of a constitutional convention. Educate first, then amend. And start the education with a couple of fundamentals: (1) there was no golden moment of agreement about what the Constititution mean; it's a compromise document about which there have been huge interpretive arguments since the beginning; and (2) the Civil War and its aftermath, including Amendments 13-15, fundamentally changed the structure of the nation; interpretation can't just be about 1789 and what's in the Federalist.

The spelling's wrong -- it's one of those brutal Irish names. If I've got the right guy, it's Geoghegan.

31 to 29.

This might what IDP is talking about. Geoghegan is right; the search engines don't seem to have learned to suggest that one yet.

"Infernal Senate" TNR, 21 Nov 1994. Paywalled.

Yes, that's it. I remembered it being undercut by the results of an election, but it was the "Contract with America" election, not Clinton's. Which makes more sense now that I think of it.

31 -- Give me a call when the ships are boarding.

I grow tired of this hating on the Electoral College. Even tho it directly goes against most of my personal interests and advantages, I am urban, from a large and populous state, the principle that minorities should better be overrepresented than not represented at all is bedrock to my understanding of how and why America works.

God people, do you really want 5 very similar states electing the President?

But what's a meaningful minority? How come the rural population of Montana deserves so much more influence than the rural population of Upstate New York?

People from Wyoming, all seven of them, are not the minorities I want to see over-represented.

pwned

The Senate and the amendment process are more than enough unfair overrepresentation of the small states.

40: similar?

From the Geoghegan piece, which is good, taken as a rant, but too tied to identity politics and not convincing about Madison:

One night last June, I couldn't sleep, and so I finally stayed up to do the numbers. Actually, I had not made a list of the states since I was in the fourth grade with Mrs. Schoenling. Alabama, Alaska, Arkansas ... how many people did they really have? At some level I didn't want to know. Here are some of the numbers that ought to keep you up at night:

* The forty senators from the twenty smallest states represent a population base of 10 percent! In the Clinton era, this means even senators who represent 90 percent of the population are not enough by themselves to pass a bill. In the worst case lineup, a mere 10 percent of the population base could be enough to block a bill.
* The fifty senators from the twenty-five smallest states represent a population base of 16 percent. In the same worst case, senators representing just more than 16 percent of the population base could be enough to block a bill.
* Think of what they can pass. The sixty senators from the thirty smallest states represent a population base of only 24 percent. Yet senators representing 24 percent of the population have sixty votes. They can bring back the death penalty for sheep-stealing.

Of course it's not likely that only the smallest states would band together on something, but the representation is still pretty skewed.

I'm always dismayed by the proposition that somehow the Constitution needs to be made more efficient, with the times, and so on.

One of the major purposes of the Constitution is to fragment power, to introduce contradictions into the heart of the state. Federalism does that as well as anything else. In fact, it makes good sense, on the whole, by recognizing that across a territory of any size, there will inevitably be significant differences in culture, habitus, etc., that are best serviced by locally made law.

Leaving aside the fact that a new constitutional convention today would be the greatest political disaster that I can possibly imagine--think about the gazillion interests that would gladly dismantle every protection or right they presently find inconvenient, and about the meager possibilities for protecting those rights if they were suddenly up for grab--the last thing I would do is want to streamline the Constitution so that we get rid of various inefficiencies and anachronisms. Efficiency is what strongly centralized states have--and it's rarely used to good purpose.

When liberals happily imagine how good it would be to exert far more unlimited federal authority in regions of the US where they dislike state law (say, in the case of anti-union legislation in many southern states), they generally seem to forget what would be more likely, namely, strong federal power sweeping into places like Massachusetts and California in a much more reactionary direction.

I figured it out once. Montana, Idaho, the two Dakotas, Alaska, and Wyoming have 12 Senators, whereas Maryland has almost a million more people and two Senators. That's just too much skew.

I could have chosen my states differently to make the skew less Republican of course. But overall it goes that way.

Burke channels Burke.

47: It is quite possible to believe that in practice a constitutional convention today would have disasterous results, while simulatneously believing that time has revealed significant flaws in the constitution

The reason you don't start a constitutional convention is because it's the single most dangerous thing you can do in politics. The last time we had a Constitutional Convention it was because our nation was literally falling apart, in a time when we were surrounded by enemies on all sides--Spain, Britain, and France, not to mention powerful Indian nations with terroitorial interests of their own.

And when these guys got together to fix the Constitution, they came up with not just a new document, but a totally new system of government. Of course the Constitution isn't perfect. It is, however, good enough. And we can amend it to address the most egregious problems.

The way I know it's good enough is because in our 200+ year history, we've over time become a richer nation, and a fairer and freer one. Things have mostly gotten much, much better. And only once in our history have millions of people died in a bloody Civil War in order to resolve political conflict.

There's a huge risk involved in this process, and I think it's recklessly naive to be like "hey, let's have a Constitutional convention! It'll be totally cool to fix the Constitution! What could possibly go wrong?"

Has it not occurred to anybody that if we write a new constitution and we screw it up, that millions of people will die? That's how political conflict gets resolved under most circumstances--when the rules work against you, you pick up a gun and you shoot people who try to make you follow the rules.

Do you not know your history? One of the first things Washington had to do as President was raise an army and put down rebellions of people who refused to follow the laws that the federal government had passed. People picked up guns against George Washington, a man who was revered as a national hero.

Peaceable resolution of political conflict is not the default setting for societies. It is, in fact, a very rare thing. I'm sorry, but I'm not about to put it into jeopardy because you'd like the Second Amendment to be a little tighter, or because you think federalism is passe and we should correct the Constitution to make that totally clear in writing.

Seriously, this idea is as reckless and naive as the Bush Administration's plan to run into Iraq and let liberal democracy magically spring up overnight once Saddam was out of office. It's lunacy.

51:Do you really think anybody here thought a constitututional convention likely? What we want is less reverence, and a more flexible attitude.

OK, I'm leaving this stupid firewall, and Savage and Keillor behind for the day. In spirit, my younger, red-bearded self is going to kidnap Frowner, throw her over my shoulder and make off for the hills.

A number of individual states have, in fact, rewritten their constitutions multiple times. It's not clear that this has always been for the best. Or worst. Some states could probabably use another convention.

probably

Article CCLXXX: Mars, bitches!

41: The rural population of Montana better represents the rural population of Upper NY State than the Congressperson from the Bronx. Rural populations are often the ones underepresnted and underprivileged in societies, which leads to quasi-feudal structures, powerful landowners with endurig influence.

42:I could make the case that Urban blacks are overrepresented in the house. Cities, with their concentrations of resources and habits of organization, do not need to be protected. What, NY, LA, DC, Houston have no, or not enough power, in Washington? Getouttahere.

I could, if I were ever in a contrarian mood, make a case that we have far too much emphasis on representation by population, and that we would benefit practically by giving Montana an extra Congressperson and Senator and Electoral vote.

I could, if I were ever in a contrarian mood,

But really, what are the odds?

Rural populations are often the ones underepresnted and underprivileged in societies

Not in this one, though.

The reason we can't rewrite the constitution is that the constitution is the only thing we supposedly agree on any more. Once it's gone, the country splits in half. If there was a supermajority that agreed on the basics, a new constitution would be possible, but at least half the country is on either the right or the left extreme, and the middle is pretty confused.

Jeez, Bob, what did you sprinkle on your Wheaties? Upstate NY isn't much at all like Montana, the feudal oppression of rural populations was way back a century ago when most people were rural, and cities are underrepresented on all kinds of stuff like education funding, transportation fuding, and anti-terrorism funding. (The DHS is a pork distributor dedicated to making Republican yokels happy).

59: What the hell, worth a shot, right?

It would be exciting as hell. We could probably arrange a divorce and divide the amendments between us. They could get the takings clause, the second amendment, etc., and we'd keep all of the bill of rights except the private property parts.

59: That depends on how good a shot you are.

60:Oh, really? Wall Street, Mad Ave, the Big Media are underepresented? I am at least in part talking about K-Street power. HRC moved to NY rather than to Chicago or Arkansas for good reasons.

Now do you think if you add two Congresspersons to the NY delegation they are going to represent the poor? There is too much money and dilution of pork and influence. But add two Congresspersons to Montana and the odds of them being populist are much higher. When you have three reps in Washington, a little pork can make a big difference. When you have 30, there will never be enough pork to go around, and each rep will be relatively powerless.

Emerson, I look around even the Big Blogs, and there aren't quite as many Minnesotans and Texans as New Yorkers and Angelenos.

So the big farm lobbies and mining interests are lacking in representation?

Bob, the big money people buy off the little-state Senators because little-state Senators are cheaper. Money isn't represented by state.

According to the census, the US is 21% rural. I can't be sure what definition is used, though. I'd say that that population is plenty well represented.

I consider a lot of this Bush Derangement Syndrome. 12 years of Republican dominance have led liberals to seek structural and meta-legal solutions to what are difficult problems of political strategy and tactics. And some demographic changes that have not yet worked their way thru the system. Look, the electoral college is only a problem in close elections, and when you have those hyper-partisan conditions, anything structural to attempt to resolve them is guaranteed to make them worse. Like the Missouri Compromise.

With global warming and Peak Oil, we will all be moving to Minnesota and Wisconsin soon, anyway. Which is how to fix the electoral college problem. Move.

Balkinization is the worst blog on this. Bush tortures, so let's get rid of the Presidency and become a Parliamentary system!

Bush will pass. Torture is not permanently enabled. We no longer take loyalty oaths.

Until everything collapses, of course.

The Missouri Compromise was kind of related to the structural problem in the first place.

I'm not advocating for structural change, for reasons stated above. But small-state overrepresentation is crap.

One possible outcome of global warming is apparently Midwestern drought.

67. You are so totally right, Bob. I remember all my right wing friends going crazy with the Clenis, and I would have to remind them that the situation was not permanent. Then these same idiots want to grant thus and so to the President, and I ask if they want Hilary to have that same power. Shuts up the thinking ones.

It's been working pretty damn well so far, there's a procedure for amending it, and the impetus to change it isn't worth the hassle: we'd be moving from "pretty good" to "better" at best, with a reasonable chance of "pretty fucked up."

I don't think anyone in this thread is advocating the expansion of executive power. Anyway, the Senate isn't going anywhere.

Shuts up the thinking ones.

Wow, both of them?

70: It's already happened. Waxman is the dictator of the most powerful House committee, under rules written by Delay (or perhaps Hastert). The Republicans can only watch.

I'm advocating the secession of the State of California [hereinafter referred to as "RoCa" for "Republic of California"]. There would be immediate benefits to the citizens of RoCa, as we would stop sending $$$ to those lunatics in DC, would encourage the movie industry to shoot more films in our now very tax-friendly country, and we could refuse to grant visas to Ann Coulter, Rick Santorum and the Malkin person. And grass; we'd legalise grass and enter into a trade agreement with the Netherlands. They'd get weed, we'd get Dutch chocolate. We'd have our own Constitution, ritually forced upon the reigning monarch [elected office; neither hereditary nor lifelong] every couple of years, in homage to the Magna Carta. We'd allow anyone to marry, thereby becoming the go-to place for gays and US Senators who want to marry sheep. We would become the Magic Kingdom. With paparazzi. And I could finally get to wear a tiara.

75: bring on Pacifica, no?

Oh, hell yes. We could take back all that money we're sending to pave rural highways in states that hate us and fix our own roads. Angel Raich could smoke her medical marijuana in peace. And we could make the US pay massive tariffs on Napa Valley wine and use that to subsidize the schools -- or just do it out of spite, which also works for me.

Those agricultural checkpoints could be turned into national borders pretty easily, I bet.

76 -- Thought it was Ecotopia.

(Actually if I'm remembering properly Bitch and DEditrix would not have gotten Ecotopia citizenship, because of their too-southerly location.)