“Who Is Worthy to Rewrite the Constitution?” is the final of four articles focused on defending the U.S. Constitution. These articles, written by The Byway‘s four editors, were published in the newspaper’s most recent September paper. Read the third article, “Why an ‘Outsider View’ of the Constitution Eludes Americans Today,” here.
In one version of the King Arthur story, his right to rule is made manifest by his pulling Excalibur from an anvil on a stone.
The 5th-century British tale of the legendary sword and its owner later was known as “The Sword in the Stone.” In the story, Excalibur could only be pulled from the stone by the next rightful king of Britain, but the story is unclear on whether the sword had been placed there by God or Merlin’s magic. In any case, Providence would not allow an unworthy man to take such power. Only the innocent boy, Arthur Pendragon could do that.
While the story is a fantastic work of fiction, I think the concept of Providence setting the stage for a righteous ruler is insightful — especially in regards to the United States Constitution. The document has certainly withstood the test of time. If it were divinely inspired, as many claim, could it be replaced with something manmade? And if so, who would be worthy to rewrite it?
This should be a non-issue, but in recent years, there has been a growing clamor among activists who want the U.S. Constitution to be scrapped and replaced with a modern, more enlightened one. But can we actually do better?
A Tall Order
Rewriting the Constitution would be a tall order, however. At the heart of the concept of American Exceptionalism, is the United States’ exceptional Constitution. Now 235 years old, the Constitution is the oldest constitution in effect today.
By comparison, the average lifespan of all national constitutions drafted since 1789 is just 17 years! And don’t think that nations are getting any better at drafting their founding documents. Researchers at the University of Chicago Law School point out that since WWI, the average lifespan of new constitutions has dropped to a paltry 12 years.
Apparently modernity is no guarantee of enlightenment!
Some have criticized the U.S. Constitution for being too difficult to amend. Amendments require a two-thirds supermajority vote in both the Senate and the House of Representatives, and then must be ratified by three-fourths of the states. Nowadays, we can hardly get a majority of Congress to agree on anything! For that reason, the Constitution has only seen 27 amendments.
In order for a constitution to endure changing times, it would need to be adaptable. How is it then, that the world’s most-enduring constitution can be accused of being outdated, or inflexible?
While many nations have been able to peacefully install new constitutions, most new constitutions come during periods of shock, violence, or political coup. A lasting constitution on the other hand, one such as ours, is a mark of invaluable stability. Stability is a good thing, right?
A Racist Constitution
Others disagree however, especially those in progressive circles. In their minds, the U.S. Constitution is deeply flawed, irrelevant, and ineffective. Writing for the Los Angeles Times in August, dean of the UC Berkley School of Law, Erwin Chemerinsky, said that the Constitution needs to be rewritten to “save American democracy.”
Chemerinsky cited the public’s growing distrust of the federal government as a marker for the need to start afresh. He believes the Electoral College undermines democracy, he wants to end the filibuster, and fix the gerrymander problem. These changes could be accomplished through legislation or through Supreme Court action, he acknowledges, but why not just write a new Constitution instead?
“It does not take much reflection to see the absurdity of using a document written for a small, poor and relatively inconsequential nation in the late 18th century to govern a large country of immense wealth in the technological world of the 21st century,” Chemerinsky wrote of the U.S. Constitution.
Chemerinsky is far from alone in these views. One 2022 article in the progressive magazine The New Yorker claimed the Constitution is unamendable. “Lately, American democracy has begun to wobble, leaning on a constitution that’s grown brittle,” wrote Jill Lepore, who has a Ph.D. in American Studies from Yale. “How far can a constitution bend before it breaks?”
Lepore pointed out that a 1937 survey revealed that 28% of respondents believed the Constitution should be easier to amend. By 2022, following this country’s racial reckoning (2017 – 2022), 41% believed the Constitution should be more frequently reviewed and amended. She added that this belief was largely partisan: 72% of Republicans believe the Constitution is fine as it is, while 72% of Democrats disagree.
Indeed, America’s era of Black Lives Matter and the post-George Floyd ethos have turned the public perception of the Founding Fathers on its head. The effect of the 2018 “woke” trend and the 2020 protests over racial injustice has practically rewritten history, even if their effects are now waning.
Viewing historical heroes through the new racial lens of Critical Race Theory, the very Framers of the U.S. Constitution have come under new scrutiny. Even the revered Abraham Lincoln, who fought for emancipation, had his statue torn down by rioters in Portland, Oregon, in the fall of 2020.
Is viewing American history through a racial lens helping? The argument from progressive activists insists that because the Constitution was written by slave owners, it is unfit to rule in our new, modern society. Progressives fail to recognize, however, that if one must be morally perfect to write the supreme law, not even they would qualify to do it. Yet, they think they can.
Worse still — leftists have convinced many in the public that the Constitution should be “periodically reviewed” or rewritten — a requirement they wouldn’t even impose on the oft-thoughtless laws legislated by our Congress. When asked about their views on changing the Constitution, citizens should tread carefully and consider the consequences of the nuclear option progressives are presenting.
Unfortunately, the lazy ignorance of too many could ultimately lead to the rejection of our law of laws. In watching other nations who suffer this fate, we see it is hardly the benevolent who fill the resulting power vacuum.
Who Is Worthy?
In July, 2023, the progressive nonprofit American Constitution Society (ACS) decried news that a far-right organization planned to hold a “simulation” of an “Article V” second constitutional convention — if one ever occurred (remember the first and only one was in 1787). ACS argued that any discussion about amending the Constitution should be “inclusive, transparent, and democratic.”
Maybe so (the first one was none of these things), but what bothered them more I think was that it was a bunch of conservatives who were discussing a rewrite. ACS itself also has that desire — indeed, their very mission is to “redress the founding failures of our Constitution.” Like any other party in discussion of rewriting the Constitution, ACS is clearly concerned about who would be called upon to do it.
The question of who would be most fit to rewrite the Constitution is a troubling one. And the likelihood that it could be turned over to a democratic vote — from a public that doesn’t even understand the old Constitution — instills no confidence. Not even the 1787 Framers chose a democratic route for their drafting.
In a power vacuum, created by a sudden state of no foundational law, there would be many willing to “fix” the problem. Those who speak the loudest and take control, however, are always the most extreme parties in society, with the most to gain from a rewrite. Activists would line the block trying to get into the room where the convention is held.
Harvard Law School professor Lawrence Lessig discussed the problem with power’s corruption in our politics and how it would make an Article V convention so risky. Certainly, money and special interests would corrupt the process of changing the Constitution.
Lessig suggested one way to escape the influence of political money and special interests was to have a convention held by what he calls state-based “citizen assemblies.” Essentially, non-politician citizens would be selected to propose amendments through the convention process, bypassing a corrupt Congress.
Still, anyone proposing a full rewrite should be treated with great suspicion.
Written to Cede Power
What makes our old Constitution so unique? Many have discussed its certain aspects that are different from other constitutions — its difficulty to amend, its Separation of Powers, its lack of economic rights, its divine origin, etc.
But I think there is one major difference that makes our Constitution exceptional: its Framers wrote it not to take power, but to yield it to a new government outside themselves.
Remember that the delegates who drafted the Constitution in the first convention were representatives of their various states, not the yet-to-be-formed federal government. It truly was written for the intent to preserve the liberty and rights of the people, even if not written perfectly in its first form.
The Framers were wary of placing too much power in such a federal government. They didn’t even give it the power to impose an income tax. That was added later as an amendment and totally changed the power and nature of the government. Now, the most power-hungry people in the country want to enjoy the largess of the federal government — whether as politicians, lobbyists, or government contractors.
None of these parties can be truly trusted to write a new constitution for us.
Even if you don’t believe that the Constitution has any divine origin, or that it was granted at the hand of Providence as was Excalibur, you have to acknowledge that it was written under a truly unique circumstance. Namely, that it was written to surrender power. Did it work? Yes! It has worked better than any other constitution, and for longer.
America is truly exceptional because of its Constitution. Let’s not throw it away.
– by AJ Martel
Feature image caption: Arthur Pendragon reaches to retrieve the Excalibur from the stone, in a display of his rightful place as king of Britain. Many wanted that power, but only he was worthy.
AJ Martel – Escalante
AJ Martel is the youth coordinator at The Byway, but he is involved in most everything. He and his family live in Escalante, and they love it here! AJ has found Utah’s small towns quite inviting and under-defended, which is why he’s so involved with the paper. What AJ loves to do most, though, is serve his community. That is clear through everything he writes and does for Escalante, Utah.