should the constitution be rewritten essay

What If We Wrote the Constitution Today?

Proposals from libertarian, conservative, and progressive scholars displayed a few striking differences—but also some profound similarities.

As the world’s oldest written constitution, the U.S. Constitution has been remarkably resilient. For more than 230 years, it has provided the foundation for America’s economic prosperity, political stability, and democratic debate. But during the past two centuries, changes in politics, technology, and values have led many to assume that if Americans set out to write a new Constitution today, the document would be quite different. To find out what a new Constitution might look like, my colleagues and I at the National Constitution Center recently asked three teams of scholars—conservative, progressive, and libertarian— to draft new Constitutions for the United States of America in 2020 from scratch .

The results surprised us. As expected, each of the three teams highlights different values: The team of conservatives emphasizes Madisonian deliberation; the progressives, democracy and equality; and the libertarians, unsurprisingly, liberty. But when the groups delivered their Constitutions— which are published here —all three proposed to reform the current Constitution rather than abolish it.

From the October 2020 issue: The flawed genius of the Constitution

Even more unexpectedly, they converge in several of their proposed reforms, focusing on structural limitations on executive power rather than on creating new rights. All three teams agree on the need to limit presidential power, explicitly allow presidential impeachments for non-criminal behavior, and strengthen Congress’s oversight powers of the president. And, more specifically, the progressive and conservative teams converge on the need to elect the president by a national popular vote (the libertarians keep the Electoral College); to resurrect Congress’s ability to veto executive actions by majority vote; and to adopt 18-year term limits for Supreme Court justices. The unexpected areas of agreement suggest that, underneath the country’s current political polarization, there may be deep, unappreciated consensus about constitutional principles and needed reforms.

The conservative team, composed of Robert P. George of Princeton, Michael W. McConnell of Stanford, Colleen A. Sheehan of Arizona State, and Ilan Wurman of Arizona State , focuses on structural reforms designed to improve the country’s political discourse . Many of their proposed changes, they write, “are designed to enable elected officials to break free of the grip of faction and once again to deliberate, with the aim of listening attentively to, as well as educating, public opinion, and promoting justice and the public good.” The changes they describe as most “radical” are reducing the size of the Senate to 50 members to encourage genuine deliberation, increasing senatorial terms to nine years and the presidential term to six years—both with no possibility of reelection—and (in a proposal the libertarian team also put forward) reintroducing senatorial appointment by state legislatures. In their view, these reforms would encourage elected officials to vote their conscience and focus on the common good rather than partisan interests.

The progressive team, composed of Caroline Fredrickson of Georgetown University, Jamal Greene of Columbia, and Melissa Murray of New York University , also finds much to admire and preserve in the original constitutional structure. “We wanted to make clear our own view that the Constitution, as drafted in 1787, is not completely incompatible with progressive constitutionalism,” they write. “Indeed, in our view, the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights.” The goal, in their proposed changes, is to secure the blessings of liberty and equality promised by the Declaration of Independence, by doing more to strengthen the “structural protections for democratic government.” Rather than abolish the Senate, the progressive team would make it more representative, with one senator for each state and “one additional senator [for] every one-hundredth of the national population.” For example, California would have 13 senators, Texas would have seven, Florida nine, and 22 states (including Washington, D.C.) one. Senators would serve for one six-year term. The progressives would also decrease fundraising pressure on representatives by extending the House term from two to four years, and by making clear that the government has the power to set both spending and contribution limits in political campaigns. Their proposed Progressive Constitution would also codify judicial and legislative protections for reproductive rights and against discrimination based on gender, sexual orientation, gender identity, pregnancy, and childbirth.

The authors of the proposed Libertarian Constitution — Ilya Shapiro of the Cato Institute, Timothy Sandefur of the Goldwater Institute, and Christina Mulligan of Brooklyn Law School — emphasize their intent to clarify the original Constitution, not replace it. “At the outset,” they write, “we joked that all we needed to do was to add ‘and we mean it’ at the end of every clause.” Their particular focus is resurrecting limitations on the commerce clause. Since the New Deal era, the Supreme Court has interpreted the commerce clause to grant Congress essentially unlimited power to regulate anything that might have a tangential effect on interstate commerce. The libertarians would allow regulation only of actual interstate commerce, not of noncommercial activity that takes place within one state. They would also limit federal power in other ways, requiring all federal regulations to be related to powers enumerated in the Constitution and prohibiting the federal government from using its powers of the purse to influence state policies. Like the conservative team, the libertarians would return the selection of senators to the states, in the hope of promoting federalism. The libertarians also include a series of other restrictions on state and federal power to protect economic liberty, such as limiting the states from passing rent-control or price-control laws, prohibiting the states and the federal government from subsidizing corporations, providing for a rescission of national laws by a two-thirds vote of the states, and requiring a balanced federal budget.

Jeffrey Rosen: The fourth battle for the Constitution

Although all three Constitutions maintain a balance between state and federal power, the main differences among them concern how they strike that balance, with the libertarians imposing the greatest restrictions on federal power and the progressives the least. (In this respect, their debates resemble those of the original Framers in Philadelphia.) But, strikingly, all three Constitutions embrace structural reforms to ensure that the balance among presidential, congressional, and judicial power is closer to what the original Constitution envisioned, with all three branches checking each other, rather than an imperial president and judiciary checking a passive and polarized Congress.

Most notably, all three Constitutions seek significant limits on executive power. The three teams all clarify that the president’s power to execute the law is not a freestanding power to make laws: The conservatives emphasize that executive orders don’t have legal effect unless authorized by Congress; the libertarians underscore “that the power of the executive branch constitutes the power to ‘execute the laws’ and not some broader, freestanding power”; and the progressives propose that “Congress’s oversight authority over the executive branch must be made more explicit to ensure it can effectively police wrongdoing in program administration or otherwise.” To increase Congress’s oversight powers over the president, both the Conservative and Progressive Constitutions would resurrect the so-called legislative veto, which the Supreme Court struck down in 1982, allowing Congress to repudiate presidential regulations and executive orders by majority vote. For both teams, the resurrection of the legislative veto would allow Congress to take the lead in lawmaking, as the Framers intended.

Along the same lines, all three Constitutions would relax the standards for impeachment, making explicit that the president can be impeached for non-criminal offenses. At the same time, both the Conservative and Progressive Constitutions would require a three-fifths vote in the House, to reduce the risk of partisan impeachments. The conservatives also note that “it is generally improper for the President personally to direct prosecutions” and that “the President may not pardon himself or the Vice President.” The progressives include other reforms, such as requiring a two-thirds vote in the Senate for the confirmation of the attorney general, “to ensure that the law enforcement power of the federal government is not abused for partisan gain.”

On the election of the president, the conservatives and progressives once again converge on nearly the same language, with both teams providing that the president shall “be elected by a national popular vote conducted using a ranked-choice voting method.” While agreeing that the Electoral College system for choosing among candidates is not democratic enough, the conservatives believe that the system for selecting candidates undervalues experience and character; therefore, they would abandon the presidential primary system, allowing presidential candidates to be selected by elected representatives at the state level. Resurrecting a proposal that was nearly adopted at the original Constitutional Convention, the conservatives would also limit presidents to a single six-year term, to encourage them to focus not on reelection but on the common good.

Finally, there is the Supreme Court. Once again, the conservative and progressive teams agree, this time on the need for 18-year term limits for justices. And the libertarians leave the question of Court terms open (their team’s leader, Ilya Shapiro, recently endorsed limits in his new book, Supreme Disorder ) , but they decide not to propose them, in the spirit of avoiding what they call purely “good government” reforms, without clear libertarian salience. This convergence suggests that if President-elect Joe Biden does, in fact, convene a commission to examine judicial reform, term limits for justices will be a proposal that has the potential for broad cross-partisan support.

Read: No other Western democracy allows this

It is on the subject of rights, rather than constitutional structures, that disagreements among the three teams really emerged. All three teams maintain and even strengthen most of the existing provisions of the Bill of Rights (the libertarians and progressives even update the Fourth Amendment’s prohibition on unreasonable searches and seizures for a digital age). However, each Constitution also adds provisions about rights that reflect the teams’ unique concerns. For example, the progressives try to increase democracy and reduce judicial power by providing that all rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” By contrast, the libertarians create the opposite presumption for courts to apply in evaluating claims about rights, emphasizing that whenever government infringes on the presumption of liberty, “courts shall determine whether that government has constitutional authority for its action and a genuine justification for its restriction or regulation.”

The three teams also strongly disagree about how to strike the balance between liberty and regulation when it comes to the First Amendment rights of speech and religion. All teams would include explicit protections for freedom of conscience, but they define it in different ways. The Conservative Constitution declares, “All persons have the inalienable right to the free exercise of religion in accordance with conscience,” but, like the conservative justices on the Supreme Court, makes clear that the free exercise of religion cannot be impeded “except where necessary to secure public peace and order or comparably compelling public ends.” The Libertarian Constitution emphasizes that “the freedoms of speech and conscience include the freedom to make contributions to political campaigns or candidates for public office.” The Progressive Constitution, by contrast, provides that “everyone shall have the right to freedom of thought, conscience, and religion” but emphasizes that “Congress and the legislature of any State shall … have the power to establish by law regulations of the financing of campaigns for elected office, provided that such regulations are reasonably aimed at ensuring that all citizens are able to participate in elections meaningfully and on equal terms.” In the three Constitutions, as on the Court today, the progressives diverge from the conservatives and libertarians on campaign-finance restrictions and on religious exemptions from generally applicable laws.

Another divergence is on the topic of gun rights. Unsurprisingly, the conservative team proposes a Constitution that clearly recognizes an individual right to keep and bear arms “ordinarily used for self-defense or recreational purposes,” but it does allow for the federal and state governments to pass “reasonable regulations on the bearing of arms, and the keeping of arms by persons determined, with due process, to be dangerous to themselves or others.” The progressive proposal, by contrast, does not explicitly recognize an individual’s right to bear arms for the purpose of self-defense, but emphasizes, like the conservatives, that gun ownership is “subject to reasonable regulation.” The libertarian version alone contains no provisions for the regulation of gun rights, stating unequivocally, “The right of the people to keep and bear arms shall not be infringed.”

I don’t want to understate the philosophical and practical disagreements among the three Constitutions: The libertarians’ emphasis on liberty leads to a much more constricted version of federal power to regulate the economy, for example, than either the progressives or the conservatives, who want to restore Congress’s primary role in making laws and checking the president. But the areas of agreement—reining in presidential power and reducing partisanship in Congress—are far more surprising than the areas of disagreement.

The most striking similarity is that all three teams choose to reform the Constitution rather than replace it. And all three focus their reform efforts on structural and institutional protections for liberty and equality rather than creating a laundry list of new rights. As Shapiro put it in a recent interview about the project , “Why start from scratch when we can build on James Madison’s genius?”

This story is part of the project “ The Battle for the Constitution ,” in partnership with the National Constitution Center .

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Does the U.S. Constitution Need a Re-Write?

Jan 8, 2019 | The Informed Citizen

As a rule, written constitutions don’t last that long. Legal experts estimate the lifespan of a constitution is less than 20 years. Indeed, the United States’ first foray into a constitution, the Articles of Confederation, only lasted six years before making way for our current U.S. Constitution, the oldest still in use today.

So, at the age of 230 years, is it time for a constitutional rewrite? Members of both political parties say yes—and no.

Articles of Confederation

It was clear pretty early on that the Articles of Confederation, ratified by all 13 states in 1781, was not working. It left the country’s central government weak, unable to collect taxes and having to rely on the states to voluntarily send tax money to fund the central government. You can imagine how that worked out.

According to the National Constitution Center, there were many issues with the Articles, including the fact that it didn’t establish a common U.S. currency. The federal government printed its own money, but each state could also do so. This made trade between the states difficult and a bit like going to a foreign country and having to exchange currency. In addition, the document was hard to amend, requiring unanimous consent from all 13 states.

The final nail in the Articles of Confederation’s coffin was the tax protest known as Shays’ Rebellion, led by Revolutionary War veteran Daniel Shays. The protest began on August 31, 1786 and lasted for six months. Massachusetts farmers protested the loss of their farms by taking over the Court of Common Pleas and releasing men who were imprisoned because they could not pay their debts. Because the federal government did not have the money to pay an army, the rebellion of more than 4,000 was ultimately defeated by a privately-funded militia, paid for by town merchants. The rebellion made clear to U.S. leaders such as Alexander Hamilton and George Washington that action was needed to amend the Articles so a Constitutional Convention was called.

Get Me a Rewrite

Delegates to the Constitutional Convention gathered in Philadelphia beginning in May 1787 thinking they were going to “tweak” the Articles. Nolan McCarty, a political science professor at Princeton University and chair of its Department of Politics, says it is hard to say whether all the delegates had the goal of throwing out the Articles of Confederation and writing a new constitution in mind, but they started working on a new one pretty quickly.

The framers of the new U.S. Constitution provided two ways to amend it, which are outlined in Article V of the new constitution. One way is for a member of Congress to propose an amendment. That proposal then needs two-thirds approval in both the House and Senate before it goes to the states for ratification . Since 1789 more than 11,000 proposed amendments have been introduced in Congress. Of those measures, 33 amendments have been sent to the states for ratification and of those 33, only 27 have obtained ratification and been enshrined in the U.S. Constitution. The second way the framers provided to amend the U.S. Constitution is for two-thirds of state legislatures (today that would be 34) to petition Congress for a constitutional convention. This second way of amending the constitution has never been used but is causing anxiety for members of both political parties.

Rewriting the Constitution

According to the Constitutional Rights Foundation, over the years there have been approximately 400 petitions from state legislatures calling for a constitutional convention for one reason or another. None of those efforts were successful.

Today, parties on both sides of the aisle are calling for a Second Constitutional Convention, (also called an Article V Convention) but for different reasons. For instance, beginning in the late 1970s, an effort by conservatives to require a Balanced Budget Amendment started calling for a constitutional convention to consider the matter. The campaign had the support of as many as 32 states at one time, but four states rescinded support, bringing the number today to 28. There is an ongoing, coordinated effort that targets 11 other states to come on board.

On the other side of the aisle, there is an effort to overturn the U.S. Supreme Court decision in Citizens United v. FEC via an Article V Convention. Citizens United dealt with campaign finance reform and held that restricting independent political spending by corporations was an infringement of free speech. Led by the left-wing group called Wolf PAC, right now the effort only has the support of five states, including New Jersey.

Both sides are concerned that a Second Constitutional Convention might get out of hand and before you know it, the U.S. Constitution has been re-written, with cherished constitutional rights in jeopardy. Critics point to the fact that there are no rules outlined in the U.S. Constitution concerning the convening of a constitutional convention. For example, how would delegates be chosen, how many delegates would each state have, would the proceedings be limited to just the amendment that has been proposed or could the scope of the convention be widened?

The Center on Budget and Policy Priorities, a nonpartisan think tank, stated: “To illustrate the importance of these issues, consider that if every state had one vote in the convention and the convention could approve amendments with a simple majority vote, the 26 least populous states—which contain less than 18 percent of the nation’s people—could approve an amendment for ratification.”

Proponents of an Article V Convention say that a complete re-write of the Constitution wouldn’t happen because three-fourths of states would still need to ratify any proposed revision, meaning that any extreme proposal could be blocked by just 13 states.

Still, the concern is warranted; after all, it happened once before. The Center on Budget and Policy Priorities pointed out in a 2017 report that the 1787 convention “ignored the ratification process under which it was established and created a new process, lowering the number of states needed to approve the new Constitution and removing Congress from the approval process.”

Some constitutional scholars, such as Sanford Levinson, a professor at the University of Texas Law School, believe that a constitutional convention is the only hope for any type of substantial reform and has called for a “wholesale revision of our nation’s founding document.”

Others point out that it is a different time and political climate than in 1787. An editorial in the Greensboro News & Record stated: “The first convention was guided by a presiding officer [George Washington] who put country above politics. That’s another reason why a second convention should be avoided. There is no George Washington among us today.”

In a memo outlining all the Article V Convention campaigns from the right and the left, Common Cause, a non-profit watchdog group, stated: “Simply put, an Article V constitutional convention is a dangerous and uncontrollable process that would put Americans’ constitutional rights up for grabs…There would be no way to limit the scope of a constitutional convention and no way to guarantee that our civil liberties and constitutional process would be protected.”

So, why did the framers provide this second option? Although it is just a guess, Professor McCarty thinks the framers had to provide the constitutional convention option because they had just used it.

“Not including the option in the constitution might have gotten in the way of making the new constitution seem legitimate,” he says, which may also account for the lack of guidance in terms of the parameters or logistics of a convention.

According to Professor McCarty, the flexibility of the U.S. Constitution negates the need for an Article V Convention.

“The reason it is the oldest constitution is because it is the shortest and the most bare bones and as a result the most flexible,” he says. “The need to formally change the constitution goes away with judicial review.”

Professor McCarty doesn’t see the support for a constitutional convention.

“Given the enormity and complexity of organizing it and the uncertainties of what it would produce, a Second Constitutional Convention is extremely unlikely,” Professor McCarty says. “There are problems that could be fixed if people agreed on the solutions. But, I don’t see that happening in this current polarizing environment.”

Discussion Questions: 1. The post mentions that under the Articles of Confederation each state had its own currency. Imagine that were still the case. What advantages or disadvantages do you think it would cause? 2.  If there were to be another Constitutional Convention and the document were re-written, what amendment would you add? What amendment would you repeal? Why? 3. The Founding Fathers compromised when writing the U.S. Constitution. Do you think that same compromise would be possible today? Why or why not? 4. As an American citizen you have many rights under the U.S. Constitution. Number the following rights from 1 to 10 in order of importance to you, number 1 being most important and number 10 being the least important.  Have a conversation about why you chose to place the rights where you did.

a. Free Speech b. Right to bear arms c. Freedom of Religion d. Trial by Jury e. Freedom against unreasonable searches f. Right to Protest g. Right to remain silent and not incriminate yourself h. Right to Petition the Government i. Right a a Speedy Trial by an impartial jury of your peers j. Right to due process of law

5. The post gives some examples of how the Articles of Confederation were deficient to the needs of the new nation. Research the Articles and list more examples. If it had not been scrapped, what problems do you think it would cause today?

Glossary Words: nonpartisan : not adhering to any established political group or party. overturn : to void a prior legal precedent. ratification : approval or endorsement. rescind : take back or cancel, repeal; to void an act or an order.

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What if every generation of americans wrote its own constitution, thomas jefferson thought that each generation should rewrite its own founding document. a constitutional scholar talks about the changes that could have happened if americans had taken jefferson up on his challenge..

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We the People: Is it time to rewrite the U.S. Constitution?

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What is the supreme law of the land?

Since 1789 when it took effect, the U.S. Constitution has been the supreme law of the land, setting up a republic with powers and responsibilities divided among three branches of government.

The Constitution – drafted, debated and adopted at a convention of 55 men from the original 13 states – includes Article V, the rules on how to make changes to the original plan. It was something the Founding Fathers quickly realized would be necessary just to get the Constitution ratified.

Ten amendments guaranteeing certain individual freedoms, now known as the Bill of Rights, were passed by Congress and sent to the states in the first two years of the republic.

During the next 200 years, another 16 amendments were adopted through the same process, which requires approval by two-thirds of both branches of Congress and ratification by three-fourths of the states, almost always through their legislatures. One took a slightly different route, with the congressional approval ratified by a series of special conventions in three-fourths of the states.

Some made the republic more democratic by giving more people the right to vote or requiring U.S. senators to be elected by a state’s voters rather than its legislators. One abolished slavery. Another allowed for an income tax.

One changed the way the vice president is elected, while others changed the day when a president takes office, limited a president’s tenure to two terms or gave residents of the District of Columbia members of the Electoral College. One outlawed alcohol while another ratified 14 years later made it legal again.

Every year a wide range of other possible amendments are proposed, but never get very far in Congress.

But Article V provides another way to amend the Constitution. It requires Congress to call a convention to consider amendments if it gets a request from two-thirds of the states. Delegates to that convention would debate changes, and if a majority agrees on one or more amendments, they would become law if three-fourths of the state legislatures approve them. That’s never happened. Some people say it should be tried.

“Our constitutional system is fractured, perhaps broken,” Clay S. Jenkinson, a historian and founder of the Theodore Roosevelt Center at Dickinson State University wrote in a recent article for the Governing.com that argues the time has come for an Article V convention to address the problems of a nation approaching its 250th anniversary.

When written, the Constitution had no representation by women, Blacks, Native Americans or average white men who had to work for a living, Jenkinson notes. The Founding Fathers lived in a world where medical treatment included using leaches, homes were lit with whale oil lamps, railroads hadn’t been invented and the internal combustion machine was a century in the future.

“We all know that our Congress is nearly paralyzed, corrosively partisan and unrepresentative of a large percentage of the American people,” he wrote. “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.”

Citizens for Self Governance whose leadership includes Mark Meckler, the founder of Tea Party Patriots, and Eric O’Keefe, a founder of the U.S. Term Limits organization, as its board chairman, has formed a foundation to urge state legislators and others to push for a convention of the states that would restrict the power of the federal government and “protect our liberty from the abuses in Washington, D.C.”

Rep. Jodey Arrington, R-Texas, introduced a resolution in July calling for just such a convention to propose constitutional amendments, arguing that enough states have already approved resolutions for some sort of “Fiscal Responsibility” amendment. The bill has not been scheduled for a hearing as yet.

Others warn an Article V convention could result in a dangerous rewriting of the Constitutional rights as we know them, with no limits on the changes that could be proposed once the delegates meet.

Former U.S. Sen. Russ Feingold, D-Wis., co-author of “The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It” said some groups calling for such a convention have proposed a national “court of the union” that could overrule the U.S. Supreme Court, or amendments that would limit the federal government’s ability to protect the environment or workers’ rights.

The effort could result in a “runaway convention,” Feingold said at a recent symposium at Marquette Law School. The Constitution has no rules on how delegates would be chosen or how they would vote.

“There isn’t anything to limit them,” Feingold said. The convention “is an institution unto itself.”

Supporters of the convention have the help of the conservative American Legislative Exchange Council in drafting resolutions, as well as Florida Gov. Ron DeSantis and former U.S. Senator and GOP presidential candidate Rick Santorum, he added.

Calls for a constitutional amendment convention are not new, said Cornell Clayton, director of the Foley Institute for Public Policy and Public Service at Washington State University. During the Progressive Era at the end of the 19th century and beginning of the 20th, supporters of such reforms as women’s suffrage and direct election of U.S. senators were pushing for a convention until Congress acted to pass those amendments through the other method.

In response to President Franklin Roosevelt’s New Deal and the expansion of the federal government, some conservatives began talking about a convention for amendments to rein in that growth, Clayton said.

Now there are calls from some conservatives and liberals for a convention for amendments they support but can’t get through a closely divided Congress.

Those on the left might support statehood for the District of Columbia or Puerto Rico, abolishing the Electoral College, eliminating the filibuster, reforming campaign finances or redistricting, limiting the Second Amendment or ensuring abortion rights or same-sex marriage.

Those on the right might want to limit the powers of the federal government, require a balanced federal budget, outlaw abortion or same-sex marriage, allow prayer in schools, strengthen and expand the Second Amendment and abolish birth-right citizenship, he said.

The historic problem of changing the Constitution through an Article V convention remains in the math the Founding Fathers set down, Clayton said. The requirement for two-thirds of the states’ legislatures to ask for the gathering means at least 34 would have to make the formal request, and three-fourths, or 38 states, would have to approve any change a convention proposes. In the narrowly divided America of today, that’s going to be difficult to achieve. There is a value in discussing Article V, he added.

“It forces Americans to think about how our institutions are operating” Clayton said. That could prompt people to set aside the “sacred view” of the Founding Fathers and the text of the Constitution for a public discussion of ways to improve it.

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Reconstituting The Constitution: How To Rewrite It?

Margot Adler

'We The People': Reconstituting The Constitution

Junius Brutus Stearns' 1856 painting George Washington Addressing the Constitutional Convention . AP hide caption

Junius Brutus Stearns' 1856 painting George Washington Addressing the Constitutional Convention .

Most Americans haven't read the U.S. Constitution in a long time, if ever. They may be able to tell you about the Second Amendment, or the Fifth, maybe even part of the First. But other than that? A lot of blank stares.

Christopher Phillips has been leading what he calls " Constitution Café " discussions with people across the country. He's asking Americans to imagine themselves as framers of our founding document.

The idea of traveling coast to coast to discuss philosophical topics with Americans is not new to Phillips.

Before this reconstituting-the-Constitution tour, the author and scholar conducted a similar exercise, traveling to different states and asking Socratic questions: What is knowledge? What is beauty? What is love?

He led these discussions in schools, parks, homeless shelters and even prisons. Then he wrote about them in three separate books.

Write Your Own Amendment

Always wanted to be a Constitutional framer? Add your own amendment in the comments section at the bottom of this piece. We will collect some of the most popular suggestions and let you vote on whether to "ratify" them the week of Dec. 12.

Who exactly is included in the preamble's "We The People" anyhow? ASSOCIATED PRESS hide caption

Who exactly is included in the preamble's "We The People" anyhow?

It's All Politics

'we the people': npr readers would ratify four new amendments.

Now, he's turned to one of his heroes — Thomas Jefferson — who believed, Phillips says, that Americans should revisit the Constitution every 20 years and rewrite it from scratch.

"His argument was that if Americans weren't vital stakeholders in that foundational document, they would become distanced from governance itself," Phillips explains. "And the politicians from the president on down would become 'like wolves.' "

For several months, Phillips has been asking people to imagine themselves in the role of Constitutional framers. Would we change some things if we could? Or would we leave them the same? He asks people to look over something in the document and rewrite it as an exercise.

One School's Experience

At Constitution High School in Philadelphia, a public magnet school, his assignment is the beginning: Students look at the preamble and write their own version.

"How many of you kept the first three words, 'We the People?'" Phillips asks the diverse class of high school juniors. "Should we make sure who we are talking about when we say 'We the People?' "

"'We the People' is just based on everybody," replies Mai Nuygen.

"When this Constitution was approved, 'We the People' only included white, landowning, tax-paying males," Phillips tells the class, then asks, "How many of you believe we might want to clarify who we are talking about?"

After pausing for a response, he notes, "a lot of you."

"I think we should put in 'the citizens of the United States,' " says 11 th grader Maria Diaz.

"How many of you would like to add — off the top of your head — 'the citizens of the United States?' " asks Phillips.

"Immigrants are people too," Shane Duson replies. "If you leave it to just the citizens of the United States, then they lose all their rights."

"I think it should only apply to the people who were born here," says Brian Cornell. "I think that our say is more powerful because it is our country."

Phillips then tells the class that, until the 1920s, white, male, tax-paying, property-holding immigrants who were not U.S. citizens could vote in federal elections.

One student suggests that "We the People" should be everyone who pays taxes. But another student points out that he has a job and pays taxes, but he's too young to vote.

Then another student offers up a utopian view. "If you live in this country and you help promote the general welfare, as the preamble states, then you are a citizen," says Jonathan Vargas.

Phillips observes that Vargas has a very different notion of who is a citizen — not simply someone born on U.S. soil, or someone who comes to the U.S. and goes through the various hoops to become a citizen.

"What Jonathan is saying is that a citizen is someone who participates in public life and contributes actively to our democracy," explains Phillips.

Soon the students are discussing Robert Heinlein's libertarian science fiction novel Starship Troopers , which makes a distinction between a citizen and a civilian. A citizen has to help make the democracy work.

Taking The Debate To The Streets

Phillips says he is trying to spark a long-overdue conversation about the Constitution.

One of the reasons Americans don't read it, says Phillips, is "because they feel so far removed from the corridors of governance. One manifestation of that is the Tea Party; another is the Occupy Wall Street movement."

Phillips has brought members of MoveOn.org and the Tea Party together to discuss the Constitution. And he is not above simply collaring random people on the street.

After his interview at NPR's office, Phillips came across some Occupy protesters marching down the street. He asked two of them whether there was something they would change in the Constitution.

One, Mark Greif, wants a new amendment that would restrict the Bill of Rights to living human beings.

'Is It Time For A New Constitution?'

A poll conducted by the Center for the Constitution , which helped inspire Phillips to start his questioning tour, found that while 86 percent of those surveyed thought the Constitution was important in their everyday lives, only a third of those respondents had actually ever read the document in its entirety.

Most of those surveyed in the " 2010 State of the Constitution " poll had read at least some of the Constitution. The poll also found that more than a third of young people, ages 18 -24, when asked, "does the Constitution still work, or is it time for a new Constitution?" agreed with the latter part of that question.

--Padmananda Rama

"So tell me what language you would use," Phillips says.

"I imagine it would say, 'The rights enumerated in the Constitution are applicable only to living natural citizens of the United States, not to fictitious persons or non-existent persons,'" says Greif.

Greif was clearly against the idea that corporations are people from a free speech point of view — a reference to last year's controversial Supreme Court decision, Citizens United.

But nearby, in the same group of Occupy marchers, another man said he wanted to leave the Constitution just the way it is.

"I think we should just look at what it actually says in the Constitution. That would be a good start. I am not looking to change it," said the demonstrator, who called himself Seaman Surley.

A Tasty Brew

Phillips has written a book about his latest travels, Constitution Café: Jefferson's Brew for a True Revolution . He believes that ordinary people can have uncommon insights about the nation's founding document — sometimes better than the experts.

But, he says, "you do have to model a kind of thoughtful and reasonable discourse in which shrillness and intolerance is a no-no. You have to willingly and even enthusiastically consider a wide range of objections and alternatives to your own viewpoint.

"That is a practice that is not being cultivated in any of the chambers of power" in Washington today, he adds. "At the very least, Constitution Café is trying to inculcate this habit again."

Web Resources

Faculty Scholarship

‘our original constitution was both brilliant and highly flawed’.

Harvard Law Professor of Practice Alan Jenkins on the U.S. Constitution and its treatment of race, how to guarantee fundamental rights, and why lawyers should be better communicators

On September 17, 1787, delegates at the Philadelphia Convention signed what became the U.S. Constitution, replacing the previous organizing document, the Articles of Confederation, which many had come to see as too weak and inadequate for the nascent nation. At once offering Americans the promise of freedom, and excluding Black and indigenous people, women, and other marginalized groups, the new Constitution has nonetheless endured — and evolved — over the last 234 years.

In fact, despite the charter’s inherent contradictions, says Harvard Law School Professor of Practice Alan Jenkins ’89 , it “beautifully articulated the notion that government’s power flows from the people” — people including African Americans and many others who have continued to fight to realize its guarantee of liberty and equal justice for all.

This Constitution Day, Jenkins spoke with Harvard Law Today about his thoughts on the document’s genius and cruelty, the Supreme Court’s important role, and how we can best harness the Constitution’s power to “afford full equality and opportunity for everyone.”

Harvard Law Today: What did the Constitution say about race when it was first adopted, and how has that conception changed over time?

Alan Jenkins: Our original Constitution was both brilliant and highly flawed. It brilliantly articulated the idea of fundamental equality — human equality. It beautifully articulated the notion that government’s power flows from the people, and that government serves the people. But it was fundamentally flawed in preserving and propping up slavery, that ultimate form of inequality. And for excluding women, non-white people, indigenous people, non-property owners, from the definition of “the people.” From a racial justice standpoint, it was highly flawed, moreover, because it explicitly provided for the return of people who had escaped from slavery.

The Constitution has been amended, and in my view, improved over time through those amendments, but we are still living with some of those fundamental contradictions of our original Constitution.

HLT: In a prior interview , you mentioned that, in contrast to ours, South Africa’s constitution explicitly allows for laws aimed at advancing equity for historically disadvantaged groups. In your opinion, assuming that that amendment of the U.S. Constitution was politically possible, is that provision something you think we could benefit from? What other changes do you think would be beneficial?

Jenkins: The South African constitution is a remarkable document, in part because it draws from the wisdom of the world’s experiences as well as its own national experience with extreme racial discrimination and ways of overcoming it. It explicitly provides that race can be considered for the narrow purpose of addressing racial discrimination and its aftermath of inequity. It provides for an explicit right to housing, a right to education, a right to basic economic survival — things that our Constitution does not explicitly provide for.

In the U.S., during the Warren Court period, we saw the Supreme Court moving towards recognizing that an absolute deprivation of resources in a nation of plenty might, when it comes at the hands of the government, actually violate our own Constitution.

I do think that our Constitution would benefit from a more explicit articulation of fundamental economic rights. But I also think that there are other ways of accomplishing that. President Roosevelt, in his Four Freedoms speech, talked about “freedom from want” as a fundamental freedom. The international human rights system, which the United States helped to craft at the end of World War II and after the horrors of the Holocaust and depravation of the Great Depression, also provides explicitly for basic economic rights. We actually have the fundamental principles in place to recognize some of those economic, social, and cultural rights that the South African constitution recognizes explicitly. It’s just a question of political will and of implementation.

HLT: Do you think it should be easier to amend the U.S. Constitution, or do you think that would create a slippery slope problem?

Jenkins: I agree with the framers’ decision to make it difficult to change our Constitution. Our Constitution should not be changed based on political whim. It should be changed only when there is a broad societal agreement that an improvement or a change is needed. However, I also think that in moments like today, where society is seeing a mismatch between how the Constitution is interpreted and the real challenges we are facing as a nation, that this may be a time when a constitutional amendment is warranted.

HLT: You have also previously made the point that, in the recent past, the Supreme Court has very narrowly interpreted existing provisions in the Constitution to overturn laws like the Voting Rights Act. Can you say more about the ways in which you believe SCOTUS’s interpretation of the Constitution has had an impact?

Jenkins: Our Constitution, as it exists now, provides us with the tools and resources and principles to afford full equality and opportunity for everyone in our country. Yet there has been a trend for at least 40 years of presidents appointing justices specifically because of their restrictive interpretation of the Constitution and their likelihood of resisting full and equal justice and opportunity through our laws.

In my opinion, that is a much bigger barrier than the Constitution itself. I think our Constitution gives us most of what we need to enjoy equal justice and opportunity and the full range of human rights. But we see not only Supreme Court justices, but many courts around the country, that are either hesitant or actively opposed to making it so.

HLT: Given those barriers, do you think that reforms are needed to the process of appointing justices to the Supreme Court, as a presidential commission is currently studying?

Jenkins: I think the best solution is to build the political will to appoint and confirm justices who are committed to the full application of our Constitution to uphold human rights and equality. That is really what we should all be striving for.

I think we have seen specific efforts in the last couple of years to manipulate the system, and to put in place justices who are hostile to fundamental human rights, and who, at least based on historical practice, would not even have been considered previously for nomination. I think that is its own problem, and I think there are some good arguments for an immediate, one-time fix for that sort of manipulation of the system. But more broadly, I personally think the historical system that the framers chose for nominations and filling Supreme Court vacancies is probably a good one.

It’s worth noting that the size of U.S. Supreme Court has been changed multiple times. Two of those changes came right after the Civil War to ensure that the new constitutional amendments, the 13th, 14th, and 15th amendments abolishing slavery, ensuring due process and equal protection of the laws, and ensuring voting rights for Black men, would actually be applied and implemented by the federal courts and the Supreme Court. Again, that was a unique moment, because it was the end of the Civil War. It was a moment in which President Lincoln had been assassinated. And there was a new president, Andrew Johnson, who was hostile to those constitutional amendments. Congress saw fit to change the size and composition of the U.S. Supreme Court through legislation; note that they didn’t have to amend the Constitution, to make sure that those fundamental rights were respected. We may be in that kind of unique moment now.

HLT: There is a lot of ongoing debate in America today about Critical Race Theory, and sometimes it feels like people are arguing about different things. What is Critical Race Theory, and how is it applied in American law, if at all?

Jenkins: One of the godfathers of Critical Race Theory was Professor Derrick Bell, who was one of my professors at Harvard Law School when I was a student here. It really is about the idea that we can’t fully understand our Constitution and laws unless we understand their full history and development. And that we can’t understand that full history and development unless we study and understand the role that race and racial discrimination have played. Otherwise, it’s like going to see a movie and coming in at the middle of it, and expecting to understand everything that comes next. You just can’t do it, because you don’t have the context. Critical Race Theory is the idea that students of the law in particular should understand that full history, including aspects that sometimes make us uncomfortable, that sometimes haven’t been discussed in mainstream academia or textbooks, because they included uncomfortable truths.

The idea of Critical Race Theory has become a political shorthand for any kind of uncomfortable racial discussion. And most of the people who are speaking out against so called Critical Race Theory actually have no idea what it is. It has never been something that has been taught in elementary schools; it’s a relatively arcane set of legal theories that would be quite surprising to find in K-12 educational curricula. The argument is really over the fundamental principle: should we understand our entire history, including those things that may make us uncomfortable, that may cast historical figures in a more nuanced or controversial light? Or should we ignore, and in some cases, censor, that past, hide it from students?

HLT: You’re teaching a course this semester called Communication, Law and Social Justice. What is it about?

Jenkins: Before joining the Harvard Law School faculty, my most recent job was as co-founder and president of The Opportunity Agenda, an organization that uses strategic communications and cultural strategies to move hearts, minds, and policy towards greater and more equal opportunity.

My idea for this course is that you can win a lawsuit, but if you haven’t built public support for the outcomes, that legal result is going to be ignored, overturned, or forgotten. You can’t sustain victories for social justice unless you have built the public support that is needed. The primary tool for doing that is better communications and persuasive strategies. As lawyers, we are terrible at that. We learn in law school to speak a very rarefied language that only people with law degrees can understand – and that has its place. But it is exactly the wrong language for trying to explain and persuade general audiences that the policies that we seek are the right ones for our community, our nation, and our world. My course is about looking at and helping students to understand a variety of strategies, both historical and contemporary, for achieving and protecting legal outcomes through communications and cultural strategies.

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The United States’ Unamendable Constitution

How our inability to change America’s most important document is deforming our politics and government.

Illustrations by Ben Hickey

W hen the U.S. Constitution was written, in 1787, it was a startling political novelty, even in an age of constitution-making . Before the Constitutional Convention, James Madison made a study of “ ancient and modern confederacies ,” but written constitutions were so new that he had hardly any to read. Also, no one had any real idea how long a written constitution would last, or could, or should. Thomas Jefferson thought that nineteen years might be about right. He wasn’t far wrong: around the world, written constitutions turn out to have lasted, on average, only seventeen years before being scrapped. Not the U.S. Constitution. It’s lasted more than two hundred years and hasn’t been amended in any meaningful way since 1971, more than half a century ago.

Laws govern people; constitutions govern governments. Lately, American democracy has begun to wobble, leaning on a constitution that’s grown brittle. How far can a constitution bend before it breaks? The study of written constitutions has become a lot more sophisticated since Madison’s day. A project called Constitute has collected and analyzed every national constitution ever enacted. “Constitutions are designed to stabilize and facilitate politics,” the project’s founders write. “But, there is certainly the possibility that constitutions can outlive their utility and create pathologies in the political process that distort democracy.” Could that be happening in the United States?

The question is urgent, the answer elusive. There are a few different ways to tackle it. One is to investigate the history of efforts to amend the Constitution, a subject that’s been surprisingly little studied. Working closely with Constitute, I head a project called Amend —an attempt to assemble a comprehensive archive of every effort to amend the U.S. Constitution.

Another approach is to query the public. In July, 2022, the nonprofit organizations More in Common and YouGov collaborated with Constitute and Amend to conduct a national survey. It asked a sample of two thousand Americans questions about whether the Constitution is still working, and, if it’s not, how to fix it.

In this piece, The New Yorker will be asking you some of the same questions. More than two centuries on, does the U.S. Constitution need mending?

Which statement comes closest to your view of the U.S. Constitution?

Public-opinion surveys have been asking Americans this question for a long time, as the political scientist Zachary Elkins has demonstrated. In 1937, when asked “Should the Constitution be easier to amend?,” twenty-eight per cent of those surveyed said yes, and sixty per cent said no. A half century later, in 1987, another survey asked more or less the same question, and got more or less the same answer: twenty per cent of respondents said that the Constitution was too hard to amend, and sixty per cent said that amending it was about as hard as it ought to be.

This era of contentment appears to have come to an end. In 2022, forty-one per cent of respondents said that the Constitution should be more frequently reviewed and amended, and another seven per cent that it should be entirely rewritten and replaced. Those are the over-all numbers. But the results are strikingly polarized. Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree.

In 1787, the men who wrote the Constitution added a provision for amendment—Article V—knowing that changing circumstances would demand revision. To amend meant, at the time, to correct, to repair, and to remedy; it especially implied moral progress, of the sort that you indicate when you say you’re making amends or mending your ways. The idea for an amendment clause, a constitutional fail-safe, came from the states, where people demanded that their constitutions be revisable, “to rectify the errors that will creep in through lapse of time, or alteration of situation,” as one town meeting put it. No single article of the Constitution is more important, the Framers believed, because, if you couldn’t revise a constitution, you’d have no way to change the government except by revolution.

W ithout Article V, the Constitution would not have been ratified. But, from the start, most amendments failed, and were meant to. Amending the Constitution requires a double supermajority: an amendment introduced in Congress has to pass both houses by a two-thirds vote, and then must be approved by the legislatures of three-quarters of the states. Also, a lot of proposed amendments are horrible. In March, 1861, weeks before shots were fired at Fort Sumter, Congress passed a doomed amendment intended to stop the secession of Southern states: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Others have been silly, like the amendment, proposed in 1893, that would have renamed the country the United States of the Earth. And plenty have been perfectly reasonable but turned out to be unnecessary. The Child Labor Amendment proposed to give Congress the “power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” It passed Congress in 1924 and went to the states for ratification, where it failed; later, child labor was abolished under the terms of the Fair Labor Standards Act of 1938.

More than ten thousand amendments have been introduced into Congress. Many more never made it that far. Only twenty-seven have ever been ratified and become part of the Constitution. Looking at them all at once, straight off, you can see patterns. Most successful amendments involve a constitutional settlement in the aftermath of a political revolution. Ratifications have come, mostly, in flurries: first during the struggle over the Constitution itself, when its critics secured ratification of amendments one through ten, the Bill of Rights; then during the Civil War and Reconstruction, a second founding, marked by the ratification of amendments thirteen through fifteen; and, finally, during the Progressive Era, when reformers achieved amendments sixteen through nineteen. Scattered amendments have been ratified since, notably the Twenty-fifth, which established a procedure in the event of Presidential debility, and the Twenty-sixth, which lowered the voting age to eighteen. The Twenty-seventh Amendment, concerning congressional salaries, was ratified in 1992, but it was first proposed in 1789. All of these have been one-offs, rather than part of efforts to constitutionalize political revolutions.

Amending the Constitution

Since 1789, members of Congress have introduced more than ten thousand proposals to amend the Constitution. Nonetheless, only twenty-seven amendments have ever been ratified, giving the United States one of the lowest amendment rates in the world. The rest are “discards,” amendments that failed. In this time line, amendment proposals are grouped by congressional session and ordered by the year they were introduced as bills.

It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder—so hard that people barely bother trying anymore. Between 1789 and 1804—fifteen years—the Constitution was amended twelve times. Between 1805 and 2022—two hundred and seventeen years—it’s been amended only fifteen times, and since 1971 only once. The Framers did not anticipate two developments that have made the double supermajority required of Article V almost impossible to achieve: the emergence of the first political parties, which happened in the seventeen-nineties, and the establishment of a stable two-party system, in place by the eighteen-twenties. As John Adams complained, in 1808, “the Principle Seems to be established on both Sides that the Nation is never to be governed by the Nation: but the whole is to be exclusively governed by a Party.” This state of affairs raised the bar for amending the Constitution. The current era of party polarization, which began in the early nineteen-seventies, has raised the bar much, much higher.

How high? Political scientists talk about the “amendment rate”—the number of amendments to any given constitution, per year. Divide twenty-seven ratified amendments by two hundred and thirty-three years and you get 0.12, the U.S. amendment rate. It is one of the lowest rates in the world.

What effect is that having on American politics and government? Consider the Electoral College . Proposals to reform or abolish the Electoral College have been introduced in Congress more than seven hundred times since 1800, and electing the President by popular vote has enjoyed a great deal of popular support for the past half century or so. In 1967, sixty-five per cent of Americans were in favor of it. And support has remained at about the same level ever since—with the exception of a notable dip in 2016.

What do you think?

As you may know, Presidents are chosen not by direct popular vote but by the Electoral College system, in which each state receives electoral votes based on its population. In the 2016 election, for example, Hillary Clinton won the popular vote, and Donald Trump won the Electoral College vote. Would you favor passing a constitutional amendment that would determine the winner of future Presidential elections by popular vote, or would you rather continue the current system, which determines the winner by Electoral College votes?

The More in Common/YouGov 2022 survey suggests that, if a constitutional amendment to abolish the Electoral College were a matter of public opinion, it would win, forty-seven per cent to thirty-five. Support, however, varies by party: seventy-three per cent of Democrats want to abolish the Electoral College, and sixty-three per cent of Republicans want to keep it. Such an amendment doesn’t seem to lie in the realm of the possible. Accordingly, most people interested in this reform have sought instead to increase the size of the House of Representatives, and to admit Puerto Rico, the District of Columbia , and Guam to statehood—both measures that would alter the number of delegates to the Electoral College. Meanwhile, domestic tranquillity remains elusive. In two of the past six Presidential elections, 2000 and 2016, the winner of the popular vote has lost the Presidency; in the aftermath of the 2020 election, supporters of the loser staged an armed insurrection at the Capitol.

A n unamendable constitution is not an American tradition. U.S. state constitutions are much easier to amend than the federal Constitution. The average amendment rate of a U.S. state is 1.23; Alabama’s constitution has an amendment rate of 8.07. A high amendment rate is generally not a sign of political well-being, though, since it comes at the cost of stability. Also, it can be disastrous in states where constitutions can be amended by a popular referendum: research suggests that the language of ballot initiatives is so mealy-mouthed that many voters, confused or misled, end up casting votes that go against their actual preferences. It’s a Goldilocks problem. You don’t want your constitution to be too hard to amend, but you don’t want it to be too easy, either.

Making the Constitution easier to amend would itself require a constitutional amendment, which means it’s not going to happen. But what if it could? The most radical way to make amending easier would be to drop the supermajority requirements, allowing Congress to pass proposed amendments by a simple majority, and then sending them not to state legislatures for ratification but to the whole of the people, by way of a national popular referendum. I’m not proposing this. No one is, not even the far-right movement—a descendant of the Tea Party—that calls for a second Constitutional Convention. Still, it’s a worthwhile thought experiment. Would the eighty-five per cent of liberals who would like to make the Constitution easier to amend be happy with the results?

Consider, for instance, the hot-button issue of immigration. Amendments to repeal birthright citizenship—a guarantee of the Fourteenth Amendment—have been introduced into Congress at least twenty times since 1991. Red states whose governors have taken strong anti-immigration positions—including Greg Abbott of Texas and Ron DeSantis of Florida—might well support amendments to their state constitutions limiting the rights of immigrants. And it’s easy to imagine a national initiative.

Would you favor or oppose the following? A constitutional amendment that would deny the children of undocumented immigrants, tourists, and temporary residents automatic U.S. citizenship?

Terrifyingly, using a referendum-based system, a federal constitutional amendment ending birthright citizenship would be only very narrowly defeated, forty-nine per cent to fifty-one, according to the poll conducted by More in Common and YouGov.

You could ask the same question of abortion. This summer, Kansas voters struck down a proposed state constitutional amendment banning all abortions. This November, voters in California, Michigan, and Vermont will vote on amendments to their state constitutions guaranteeing a right to abortion. What would be the result if abortion were put to a national popular referendum?

Would you favor or oppose the following? A constitutional amendment guaranteeing the right to access abortion.

Surveys aren’t binding. They’re not even especially reliable. But this 2022 survey offers at least a glimpse of what might happen if a slate of constitutional amendments were voted on in a nationwide referendum this year. A constitutional amendment to restrict abortion would likely be ratified, fifty-one to forty-nine—and yet, paradoxically, a constitutional amendment to guarantee a right to abortion would also be ratified, fifty-seven to forty-three.

Under the current rules, no federal abortion amendment could possibly be ratified. No proposal, in either direction, is going to earn a two-thirds majority in both houses. But that doesn’t mean that the Constitution isn’t being changed on this question. Instead, it’s undergoing a massive change by way of constitutional interpretation, in the hands of the Supreme Court.

“N othing new can be put into the Constitution except through the amendatory process,” Justice Felix Frankfurter declared, in 1956, and “nothing old can be taken out without the same process.” That’s not strictly true. The Constitution has become unamendable, but it has not become unchangeable. Its meaning can be altered by the nine people who serve on the Supreme Court. They can’t rewrite it, but they can reread it.

The Framers did not design or even anticipate this method of altering the Constitution. They didn’t plan for judicial review (the power exercised by the Supreme Court to review the constitutionality of legislation), and they thought they’d protected against the possibility of judicial supremacy (the inability of any other branch of government to check the Court’s power).

As with the filibuster, whether you like judicial supremacy generally depends on whether your party’s in power or out. The Court is the least democratic branch of government. But it also has the ability to protect the rights of minorities against a majority. In the nineteen-fifties, because Jim Crow laws meant that Blacks in the South could not vote, it proved impossible to end segregation through electoral politics or a constitutional amendment; instead, the N.A.A.C.P. sought to end it by bringing Brown v. Board of Education to the Supreme Court. Since then, the Court has implemented all sorts of constitutional changes: it has secured the rights of criminal defendants; established rights to contraception, abortion, and same-sex marriage; declared corporate campaign donations to be free speech; and interpreted the Second Amendment as restricting the government’s ability to regulate firearms. Which of these you believe to be bad decisions and which good depends on your position on all manner of things. But, unlike a constitutional amendment, every decision the Court makes it can reverse, the way that, this year, in Dobbs v. Jackson Women’s Health Organization , it overturned Roe v. Wade, from 1973. (You can reverse a constitutional amendment, but only with another one: that’s how Prohibition ended.)

In 2002, Congress considered a proposed amendment that read, “Marriage in the United States shall consist only of the union of a man and a woman.” Introduced again and again in subsequent congressional sessions, it went nowhere. Instead, in 2015, in Obergefell v. Hodges , the Supreme Court determined that same-sex marriage is constitutionally guaranteed under the equal-protection clause of the Fourteenth Amendment. Given the direction the Court is headed , will that ruling be enough to protect that right? Alternatively, if this question, too, were submitted to a national popular vote, how would Americans lean?

Would you favor or oppose the following? A constitutional amendment guaranteeing the right to marry of any two adult citizens, regardless of sex or gender.

Much depends on how survey questions are phrased. But the survey data suggest that, in a referendum, a constitutional amendment banning same-sex marriage would be defeated, thirty-five per cent to sixty-five, while a constitutional amendment guaranteeing same-sex marriage would be ratified, sixty-two to thirty-eight.

Reversing Roe v. Wade did not require a constitutional amendment (even though many were proposed). Instead, it required something even more extraordinary: a wholly new mode of constitutional interpretation. Roe built on a 1965 case, Griswold v. Connecticut, which protected access to contraception under a right to privacy. After Griswold, conservative critics of the Court began to devise an approach to constitutional interpretation custom-built to defeat it: the jurisprudence of originalism. Robert Bork first proposed its framework in 1971, in an essay in which he argued against Griswold. Originalism undergirds one of the most radical constitutional reversals in recent American history: the reinterpretation of the Second Amendment as protecting an individual right to bear arms, as opposed to the right of the people to form militias. (Bork himself disagreed with this reinterpretation, which has been advanced by the N.R.A.) This spring, in the Bruen case , the Court reinforced its N.R.A.-informed interpretation of the Second Amendment. What would happen if the Second Amendment were put to a referendum?

The Second Amendment currently reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Which revised version, if any, would be closest to your preference?

There’s a good reason that American constitutional amendments are not decided through national referendums. (Consider, after all, that Brexit was decided by a national popular referendum.) “A nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato,” Madison wrote, in Federalist No. 49. “The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” If the question of whether the government can regulate the possession of firearms were put to the people, and the people were evenly divided, what would be the consequence? Madison worried that putting constitutional matters to the people directly was an experiment “of too ticklish a nature to be unnecessarily multiplied.” Then again, plainly the people ought to have a greater role than they have when no amendments are any longer even sent to the states.

All sorts of ideas are floating around for how to shake things loose. Constitutional populists—Tea Partiers, Trumpists, and other conservatives, from Rick Santorum to Greg Abbott—have rallied around a proposal to revise the Constitution by way of a provision in Article V that’s never been used, and which holds that the country, “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Nineteen state legislatures have made some version of that application; thirty-four are required. Since 2013, this effort has been headed by the Convention of States project, funded in part by the Koch brothers. A new book, “ The Constitution in Jeopardy ,” co-authored by the former Democratic senator Russ Feingold, warns that, if Republicans win a few more state legislatures in this year’s midterms, a convention that could gut the Constitution, or at least the federal government, is around the corner.

If you could fix Article V, how would you do it? In 2020, the National Constitution Center asked three teams of experts—constitutional lawyers, mostly, divided into teams of libertarians, conservatives, and progressives—to draft a new constitution. The libertarians, who joked that “all we needed to do was to add ‘and we mean it’ at the end of every clause,” left Article V alone. The conservatives decided to make their constitution easier to amend (“but not too much easier”) by lowering the voting requirement in Congress from two-thirds to three-fifths, and in the states from three-fourths to two-thirds. And the progressives came up with a plan under which amendments could be proposed “not just by two-thirds of members of each House (or two thirds of states) but by Members of each House (or states, for constitutional conventions) representing two-thirds of the U.S population.” Think of it as an amendment caucus; if an amendment succeeded in Congress, it could then be ratified either by three-quarters of the states (the way things are now) or “by states representing three-fourths of the population.” No one is calling for constitutional amendment by national referendum.

A mericans aren’t going to amend Article V anytime soon because we’re not going to amend any part of the Constitution anytime soon. In the end, the really interesting question isn’t what would happen if the people could amend the Constitution by popular vote but what actually happened, in the first place, to cripple Article V, and give the Supreme Court superpowers.

The Constitution became effectively unamendable in the early nineteen-seventies, just when originalism began its slow, steady rise. The Twenty-sixth Amendment, which was ratified in 1971 and lowered the voting age from twenty-one to eighteen, an antiwar-movement objective, turned out to be the only amendment that constitutionalized an aim of one of the political revolutions of the sixties—the women’s movement, the civil-rights movement, the gay-rights movement, and the environmental-rights movement. People did not see that coming: they expected those movements to result in amendments.

In 1970, the civil-rights activist, constitutional theorist, and Episcopal priest Pauli Murray told the Senate Judiciary Committee that the passage of the proposed Equal Rights Amendment, barring discrimination on the basis of sex, was essential to ending what Murray referred to as Jane Crow, and to inaugurating a new and better era in the history of the nation’s constitutional democracy:

The adoption of the Equal Rights Amendment and its ratification by the several States could well usher in an unprecedented Golden Age of human relations in our national life and help our country to become an example of the practical ideal that the sole purpose of governments is to create the conditions under which the uniqueness of each individual is cherished and is encouraged to fulfill his or her highest creative potential.

That, of course, did not come to pass. No golden age ever does. In 1972, Congress passed the Equal Rights Amendment and sent it to the states, where most observers expected that it would secure quick ratification. But, in 1973, the Supreme Court issued its opinion in Roe v. Wade. And conservatives began a decades-long campaign to advance originalism, reverse Roe, and defeat the E.R.A. by arguing, as Phyllis Schlafly did, that “the E.R.A. means abortion.” Every significant amendment attempted since has failed. And, although efforts are ongoing to revive the E.R.A., so far they haven’t succeeded, either.

Polarization weakened Article V. But the Constitution really snapped when it became too brittle to guarantee equal rights to women. Liberals gave up on constitutional amendment; conservatives abandoned it in favor of advancing originalism. Still, nothing’s broken that can’t be mended. It’s a question, now, of how. ♦

Funding for Amend has been provided by the National Endowment for the Humanities, the Harvard Data Science Initiative, and the Inequality in America Initiative. Special thanks to Zachary Elkins and Constitute and to the Comparative Constitutions Project and More in Common . Research assistance has been provided by Mia Hazra, Henry Haimo, Samuel Lowry, Imaan Mirza, Tobias Resch, Fawwaz Shoukfeh, Jonathan Schneiderman, and Meimei Xu.

Did Thomas Jefferson Say Americans Should Rewrite the Constitution to Account for Modern Society?

In the tweet, user @GoodPoliticGuy wrote:

Reminder that Thomas Jefferson who helped write the Declaration of Independence also said we should rewrite the constitution every 20 years so that dead people wouldn’t rule over modern society.

The tweet appeared to reference national and global discourse stemming from a Supreme Court decision to overturn Roe v. Wade on June 24 2022. Incidentally, the tweet claimed Jefferson “helped write the Declaration of Independence,” whereas his official WhiteHouse.gov biography described him as the principal author:

Thomas Jefferson, a spokesman for democracy, was an American Founding Father, the principal author of the Declaration of Independence (1776), and the third President of the United States (1801–1809).

On the other hand, the tweet included a specific reference to “20 years,” the timeframe within which Jefferson purportedly believed such revisions ought to be considered. A search turned up a 2007 University of Illinois page (“U. of I. scholars collecting, analyzing constitutions from around world,”) which began:

Thomas Jefferson believed that a country’s constitution should be rewritten every 19 years. Instead, the U.S. Constitution, which Jefferson did not help to write (he was in Paris serving as U.S. minister to France when the Constitutional Convention was held in Philadelphia), has prevailed since 1789. “Jefferson thought the dead should not rule the living, thus constitutions should expire frequently, but the fact is that the U.S. Constitution quickly became enshrined by the public and is the oldest constitution in the world,” said Zachary Elkins, a professor of political science at Illinois. Many other constitutions do not last very long, according to Elkins, who is working with Tom Ginsburg, an Illinois professor of law, on a project to collect and analyze some 760 constitutions used worldwide since the U.S. Constitution took effect.

That analysis pointed to extant writings or commentary in Jefferson’s papers, but it didn’t provide a specific citation. But the specific timeframe of 19 years led to Princeton University’s extensive “The Papers of Thomas Jefferson” project :

The Papers of Thomas Jefferson, established at Princeton University, is preparing the definitive scholarly edition of the correspondence and papers written by America’s author of the Declaration of Independence and third president. Since the publication of Volume 1 by Princeton University Press in 1950, the project has been publishing, in chronological sequence, not only the letters Jefferson wrote but also those he received. As the first modern historical documentary edition, the project initially assembled photocopies of every known extant letter or Jefferson-related paper, approximately 70,000 items gathered from 900 repositories and private collections worldwide. Neither an archive of original manuscript materials nor a collection of digital facsimile images, the Jefferson Papers is a collaborative publishing hub providing in print—and now in electronic format—quality, contextualized Jefferson source material for posterity. With each new document transcribed, annotated, and edited to exacting standards, the Papers has provided an unparalleled, accessible source of the written legacy of Jefferson. The edition is comprehensive in scope, with the Princeton editors bearing the responsibility for the letters and papers during the period from 1760 through the end of Jefferson’s presidency on March 3, 1809. Our colleagues at the Thomas Jefferson Foundation at Monticello are producing the volumes that cover his retirement from public life until his death in 1826.

In that archive, a page was titled as follows:

Thomas Jefferson to James Madison Volume 15: 27 March 1789 to 30 November 1789

It began with Jefferson’s  allusion to the matter of revising the founding documents of the United States, in a broader context of events then ongoing in France (“our side of the water”):

DEAR SIR I sit down to write to you without knowing by what occasion I shall send my letter. I do it because a subject comes into my head which I would wish to develope a little more than is practicable in the hurry of the moment of making up general dispatches. The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.—I set out on this ground, which I suppose to be self evident, ‘that the earth belongs in usufruct to the living’:[2] that the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society.

Jefferson then spoke about generational cycles, debt, and related topics, providing an analogy to illustrate his musings about younger generations being constrained by the obligations of their predecessors:

To render this conclusion palpable by example, suppose that Louis XIV. and XV. had contracted debts in the name of the French nation to the amount of 10,000 milliards of livres, and that the whole had been contracted in Genoa. The interest of this sum would be 500. milliards, which is said to be the whole rent roll or nett proceeds of the territory of France. Must the present generation of men have retired from the territory in which nature produced them, and ceded it to the Genoese creditors? No. They have the same rights over the soil on which they were produced, as the preceding generations had. They derive these rights not from their predecessors, but from nature. They then and their soil are by nature clear of the debts of their predecessors. Again suppose Louis XV. and his cotemporary generation had said to the money-lenders of Genoa, give us money that we may eat, drink, and be merry in our day; and on condition you will demand no interest till the end of 19 years you shall then for ever after receive an annual interest of * 12⅝ per cent. The money is lent on these conditions, is divided among the living, eaten, drank, and squandered. Would the present generation be obliged to apply the produce of the earth and of their labour to replace their dissipations? Not at all. […] The interest of the national debt of France being in fact but a two thousandth part of its rent roll, the paiment of it is practicable enough: and so becomes a question merely of honor, or of expediency. But with respect to future debts, would it not be wise and just for that nation to declare, in the constitution they are forming, that neither the legislature, nor the nation itself, can validly contract more debt than they may pay within their own age, or within the term of 19 years? And that all future contracts will be deemed void as to what shall remain unpaid at the end of 19 years from their date? This would put the lenders, and the borrowers also, on their guard. By reducing too the faculty of borrowing within it’s natural limits, it would bridle the spirit of war, to which too free a course has been procured by the inattention of money-lenders to this law of nature, that succeeding generations are not responsible for the preceding.

On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct [right to live freely].  They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right. —It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents : and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.

This principle that the earth belongs to the living, and not to the dead, is of very extensive application and consequences, in every country , and most especially in France. It enters into the resolution of the questions Whether the nation may change the descent of lands holden in tail? Whether they may change the appropriation of lands given antiently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity? Whether they may abolish the charges and privileges attached on lands, including the whole catalogue ecclesiastical and feudal? It goes to hereditary offices, authorities and jurisdictions; to hereditary orders, distinctions and appellations; to perpetual monopolies in commerce, the arts and sciences; with a long train of et ceteras: and it renders the question of reimbursement a question of generosity and not of right. In all these cases, the legislature of the day could authorize such appropriations and establishments for their own time, but no longer ; and the present holders, even where they, or their ancestors, have purchased, are in the case of bona fide purchasers of what the seller had no right to convey.

THE  BOSTON  POLITICAL REVIEW

Bringing you news for the world we live in..

• Alaina DeMichiei
• Nov 1, 2017

Why a Living Constitution is Necessary

In a letter to James Madison, Thomas Jefferson expressed his belief that the Constitution should be rewritten every 19 years to put the power in the hands of each living generation and avoid “perpetual law.” If one of the Framers didn’t have faith that the Constitution could be applicable only 19 years after it was written, why do Americans think it is absolutely necessary to strictly follow the document 230 years after it was written?

I believe that the discontinuity that Jefferson foresaw all those years ago is why the idea of a living constitution that adapts to modern-day life is essential to our democracy. There is no way that a fairly homogenous group of men in the 18th century could possibly predict the inventions and debates that our country would have in the future. This is why the idea of a Constitution that changes as society does and can be interpreted loosely is necessary to accommodate 21st century America and its citizens.

There are people who believe in the “original intent” theory, which means that the Constitution should be interpreted according to the original intent of the Framers. But the Framers could not have predicted things like cell phones, the internet, or automatic weapons nor planned accordingly for these innovations. Also, at the time that the Framers wrote the Constitution, the United States was a collection of racist, misogynistic, slave-owning white men who had total control over the entire government since they were the only ones allowed to participate. My 21st century interpretation of “We the people” is much different than that of James Madison or Benjamin Franklin. There is no possible way that this group of men could have been inclusive to any of the minority groups. Even Abigail Adams couldn’t convince her own husband to include women’s rights when drafting the new country’s laws.

There had to be some way to change the Constitution to cover the liberties of all people, not just white, landowning men. Over time, we have accomplished this through a loose interpretation of the document and the use of amendments, but these solutions are not always easy. There is a reason we only have 27 amendments to the Constitution, and that is because it is no small task to pass an amendment. To argue that the Constitution must be amended in order to differ from the Framer’s original intent is unrealistic.

Amendments themselves are quite ambiguous, which makes it very difficult to apply the law without leaving some of the interpretation to the three branches. For example, all the 14th amendment says is that no state shall pass a law that will “abridge the privileges or immunities of citizens of the United States… nor deprive any person of life, liberty, or property” What is a privilege? What is an immunity? What is liberty? All of these words are so broad that they could either mean nothing specifically with a strict interpretation and render themselves useless, or they could mean several things with a loose interpretation and protect all citizens against many different forms of oppression. One of these options is much more effective than the other.

If an amendment is so broad that it cannot be interpreted without justices being accused of “judicial activism” or Congress passing laws that are “unconstitutional”, then what is the point of amending the Constitution? Would all amendments have to specifically state what they want to cover? Would the 14th amendment have to list every right and liberty that it wants to protect for people? That method would be untimely and inefficient since that list of liberties would constantly be growing over time. The only plausible way for our government to work is to have a Constitution that is willing to adapt to the current conditions of our nation and its citizens.

One of the most debated topics in the country right now is gun control and the interpretation of the Second Amendment. On one side, there are gun enthusiasts who believe that any restrictions on guns are unconstitutional. On the other side, there are people who believe that machine guns and other weapons are not covered under the Second Amendment and can be restricted. Unfortunately, the Second Amendment is so ambiguous that neither side can truly claim that their argument is right without a loose interpretation of the Constitution. The amendment promises citizens the right to “keep and bear arms,” but the word “arms” is not clearly defined; therefore, there is no way to determine if this word covers things like bump stocks or automatic weapons. Potentially dangerous ambiguities like this are one example of why a living constitution is necessary.

What’s great about our nation is how our values have changed over time from prejudice and divisiveness to a greater tolerance and inclusiveness. Just because the generations before us did not have these traits does not mean that we need to follow the narrow-mindedness that they had. With a Constitution that is adaptable, our country and the law of the land can constantly readjust themselves to include every citizen and every new invention that comes about. Without a living Constitution, we would forever be stuck in the 18th century, which was only a good time period for one small group of people.

#opinion #scotus #constitution #USPolitics

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Is it time to rewrite the constitution fidelity to our imperfect constitution.

James E. Fleming , Boston University School of Law Follow

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Boston University School of Law

This essay considers arguments that the U.S. Constitution is so imperfect — and the constitutional and political system so dysfunctional or otherwise failing — that it is time to rewrite the Constitution through amendment or constitutional convention. I argue that if we adopt and maintain an attitude of fidelity to our imperfect Constitution, it may be unnecessary to formally amend the Constitution unless there is good reason to believe that something better might come out of this process. The better approach is to maintain an attitude of fidelity to the imperfect Constitution and to apply a Constitution-perfecting theory — to interpret the Constitution so as to make it the best it can be. Furthermore, maintaining that attitude, we should recognize the need to “rewrite” the constitutional culture the better to secure constitutional democracy: to cultivate the civic virtues and foster the capacities needed to maintain constitutional self-government.

Published as: "Fidelity to Our Imperfect Constitution," in Symposium Is It Time to Rewrite the Constitution? 2015 Wisconsin Law Review Online 31 (2015).

Recommended Citation

James E. Fleming, Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution , in No. 15-13 Boston University School of Law, Public Law Research Paper (2015). Available at: https://scholarship.law.bu.edu/faculty_scholarship/86

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8 Is It Time to Rewrite the Constitution? Fidelity through Perfecting Our Imperfect Constitution

• Published: August 2015
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This chapter considers arguments that the U.S. Constitution is so imperfect—and the constitutional and political system so dysfunctional or otherwise failing—that it is time to rewrite the Constitution through amendment or constitutional convention. If an attitude of fidelity to our imperfect Constitution is adopted and maintained, it may be unnecessary to formally amend the Constitution unless there is good reason to believe that something better might come out of this process. This chapter argues that the better approach is to maintain an attitude of fidelity to the imperfect Constitution and to apply a Constitution-perfecting theory—to interpret the Constitution so as to make it the best it can be. Furthermore, maintaining that attitude, one should recognize the need to “rewrite” the constitutional culture the better to secure constitutional democracy: to cultivate the civic virtues and foster the capacities needed to maintain constitutional self-government.

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We the People: Is it time to rewrite the U.S. Constitution?

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What is the supreme law of the land?

Since 1789 when it took effect, the U.S. Constitution has been the supreme law of the land, setting up a republic with powers and responsibilities divided among three branches of government.

The Constitution – drafted, debated and adopted at a convention of 55 men from the original 13 states – includes Article V, the rules on how to make changes to the original plan. It was something the Founding Fathers quickly realized would be necessary just to get the Constitution ratified.

Ten amendments guaranteeing certain individual freedoms, now known as the Bill of Rights, were passed by Congress and sent to the states in the first two years of the republic.

Calls for a constitutional amendment convention are not new, said Cornell Clayton, director of the Foley Institute for Public Policy and Public Service at Washington State University. During the Progressive Era at the end of the 19th century and beginning of the 20th, supporters of such reforms as women’s suffrage and direct election of U.S. senators were pushing for a convention until Congress acted to pass those amendments through the other method.

In response to President Franklin Roosevelt’s New Deal and the expansion of the federal government, some conservatives began talking about a convention for amendments to rein in that growth, Clayton said.

Find out more

The Spokesman-Review

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Home > SoL > LAW > 505

Faculty Articles and Papers

Two ways to rewrite the constitution.

Richard Kay

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The proposition that the Constitution needs to be rewritten begs a critical question-namely what the Constitution is. If we posit that by Constitution we mean the rules drafted by the Philadelphia Convention of 1787 as amended in accordance with Article V of those rules, the argument that many of those rules are out of date and need to be replaced is a powerful one. This inadequacy appears in the powers they grant, the powers they do not grant, some of the limitations they impose on public decisions, and some limitations they ought to impose but do not. No matter how sensible they were for the eighteenth century, changes with respect, at least, to geography, demographics, technology, and prevailing values make current problems of governance substantially different from those confronting the original enactors. And, notwithstanding the regular invocation of the Constitution as expressing the authentic will of "We the People,"' every passing decade makes the existence of such a popular endorsement increasingly rhetorical. I also assume, for the sake of this Essay, that the original Constitution's own procedures for rewriting in Article V are practically unavailable to make the changes necessary to correct these deficiencies.

If we accept that the Constitution (as defined) needs to be rewritten, we must then ask how it should be rewritten. I discuss two methods in the balance of this Essay. The first is to write and adopt a new text from scratch. The second is to maintain the existing text but to reinterpret its rules so as to make it better fit with modem realities. Each of these methods, however, suffers from serious problems.

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Kay, Richard, "Two Ways to Rewrite the Constitution" (2015). Faculty Articles and Papers . 505. https://digitalcommons.lib.uconn.edu/law_papers/505

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U.S. Constitution.net

Constitutional topic: rewriting the constitution – the u.s. constitution online – usconstitution.net, constitutional topic: rewriting the constitution.

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages .

This Topic Page concerns the ideas for rewriting the United States Constitution through history. Amendment of the Constitution is detailed in Article 5 .

The primary source for this Topic is John R. Vile’s Rewriting the United States Constitution – An Examination of Proposals from Reconstruction to the Present (Prager Publishers, New York, NY, 1991). This book is out of print, but should be available at university libraries.

The United States Constitution has served as a framework for the government of the United States and as a guarantee of individual freedoms since 1788, but from the outset, people had ideas on how to improve on what the Framers had created in their Convention . Within 18 months, the Bill of Rights was passed, adding 10 amendments to the brand new document. From 1789 to 1992, the Constitution was amended 27 times, and through judicial review, the meaning of parts of the Constitution have changed many times.

But these changes were all relatively small, incremental, evolutionary. None are truly revolutionary, in the way the Constitution was to the Articles of Confederation . In fact, the Constitution has no provision, directly, for full-scale change. There is, however, the concept of the Amendment Convention as noted in Article 5. The power or limits of such a convention are unknown because there has never been one. It is thought, however, that a Convention would be able to propose any change to the Constitution it decided to, including full replacement.

There have been many proposals for substantial change to the Constitution. Thomas Jefferson himself was wary of the power of the dead over the living in the form of an unchanging Constitution. To ensure that each generation have a say in the framework of the government, he proposed that the Constitution, and each one following it, expire after 19 or 20 years. James Madison, Jefferson’s contemporary, found comfort in knowing that the populace would not be thrust into political turmoil every 20 years, and noted that the way the Constitution is now structured, it implies an acceptance of the status quo unless explicitly changed.

In Rewriting the U.S. Constitution , Vile divides the various historical proposals for large-scale change chronologically. The remainder of this Topic will summarize each major division and the main points of most of the proposals. The “division headings” are Vile’s.

From Reconstruction to the Turn of the Century

The period following the Civil War brought several events that stirred authors to propose modifying the Constitution. Reconstruction itself, and the varied feelings of victory, defeat, and unfairness, undoubtedly contributed, as did the centennials of the Declaration and the Constitution. In addition, technology was advancing quickly, and the economy of the United States was undergoing transformation.

Charles O’Conor , a New York lawyer and politician, advanced several ideas in a series of speeches and articles in the late 1870’s. Foremost on his mind was the apparent corruption and redundancy in government. His proposals included unicameral legislatures in all states and at the national level; elimination of all government debt, tariffs, and duties. He proposed that the President not be an elective office, but rather filled on a monthly basis from the body of the national legislature. He had ideas on voting, including changing it to a duty rather than a right and elimination of the secret ballot. He thought the diplomatic corps to be unnecessary with the advent of the telegraph.

Albert Stickney , a Boston lawyer, published a book in 1879 on the subject of a new Constitution. He would maintain the executive and legislative branches separately, and to allow the members of both to serve during good behavior. This, he hoped, would put an end to the party system, which he felt undermined the democratic process. He also included the judicial branch in the election and life term idea. The office of Vice-President was eliminated, replaced by a system of succession of cabinet officers. He also eliminated Presidential veto power. The unicameral national legislature would have the authority to pass any necessary law, and had no approval power over Presidential appointments.

Woodrow Wilson , future President, wrote several papers on revising the Constitution from the late 1800’s to early 1900’s. One of his major proposals was to allow cabinet members to come from, and remain in, Congress. His main concern was a decline in statesmanship, and by allowing the two branches to mix, the cream would float to the top. He also proposed lengthening the term of congress people and perhaps even allowing the President to serve during good behavior. He would also allow the House to be dissolved, and expected the Senate to follow suit.

William B. Lawrence , lawyer, diplomat, and author, published an article on the Constitution in 1880. His impetus seems to be the Reconstruction and the disputed election of 1876. He advocated returning to the choosing of the President by Congress, as was first considered in the Constitutional Convention. He questioned the need for the Vice-President, the Electoral College , political conventions, and the single-person executive. He favored a system modeled after that of the Swiss; that executive is a seven member council, the President and Vice President chosen for an annual term from that council. The members of the council are chosen by the legislature.

Henry Lockwood , New York lawyer, wrote a book in 1884 which primarily attacked the presidency. He viewed the President as an elected king, and proceeded to tear down every power of the President, from his role as commander in chief to the weakness of the cabinet. He advocated national power over the states, but used the model of the Articles of Confederation as a superior legislative model; a unicameral Congress, an executive council (whose members were appointed by Congress and could be members of Congress), and a weakened judicial branch were the highlights of his plan. Lockwood’s plan was widely read, but had little impact in the long run.

Isaac Rice , political scientist, was a native of Bavaria; in 1884, he saw the Constitution as the result of a badly flawed reading of Montesquieu by the Framers; the government they created, with its strong separation of powers and the built in checks to be to the nation’s detriment. While the Framers took from Montesquieu that power is the source of despotism, they ignored their own experience with the British system that the true source of despotism is the concentration of power in a single person, rather than a single body. Rice looked to Parliament as his model for a new American government.

Caspar Hopkins , a California businessman, proposed a series of changes in 1885. While praising the Constitution, he noted that with the country had outgrown many of its provisions. He proposed, for example, national standards over civil matters such as marriage and education. He melded the executive and legislative branches by making the members of the Cabinet become members of the legislature. He also proposed special education for legislators, and allowing only natural-born citizens to serve. He restricted members of the Senate to people making $100,000 or more, restricted the vote to natural-born citizens only, and restricted immigration. He also extended all terms and abolished the Electoral College.

Goldwin Smith , lawyer and scholar, was English-born and a frequent commentator on the U.S. Constitution, and published his article in 1898. He would have modified the legislature to more of the British Parliamentary model, with a weakened Supreme Court, and clarification on taxation and tariff issues. He proposed removing the 15th Amendment , and though he says it was not to disenfranchise blacks, his comments on Eastern European immigrants belie a racist twinge.

Proposals Occasioned by Progressivism and War

The early 20th century was marked by two great political events: the rise of progressivism, and World War I. Progressivism was a movement that was concerned with some new phenomena: the rise of industry, and the rise of the city. They touted equality of women and of the races, and supported suffrage reform and civil rights. World War I, like WW2 after it, brought some needed prosperity, but also the deaths of many American soldiers. American isolationism was a prevalent theme until the U.S. entered the war.

Walter Clark , chief justice of the North Carolina Supreme Court, published an article in 1907 which embodied progressive ideologies. His main complaint is that the Constitution is not democratic. He advocated popular election of Senators (a common theme prior to the passage of the 17th Amendment ) and proportional representation in the Senate. He applauded the changes in the election of the president, but called for even more reform, including changing the Electoral College to match population ratios rather than legislative representation, and a six-year term.

Walter Tuller , California lawyer, wrote an article in 1911 advocating a convention to amend the Constitution. His primary goal was popular election of Senators. He also proposed that the amendment process be changed to allow an amendment to be ratified upon acceptance of half the states, and a change to allow the federal government more explicit control over corporations. Tuller devoted much of his paper to a discussion of the number of states that have called for a convention, and how to force one should the Congress fail to call one.

Yandell Henderson , physiology professor at Yale, was an active member of the Progressive Party. In 1913, the Yale Review published an article he wrote that the judicial branch, and the concept of federalism, needed change on a Constitutional level. He advocated bringing the legislative and executive branches closer together, if not fused, offering a parliamentary model as his ideal. He advocated national referendum to allow the people to overturn judicial decisions. Finally, he wanted to increase the power of the federal government at the expense of the states, but he did not advocate the elimination of all state powers.

William MacDonald , journalist and scholar, wrote a critique of the Constitution in 1922. He advocated change to a parliamentary system, with term limits, encouragement of minor political parties, an executive drawn from the legislature, a popularly elected President, and the reduction of power of the President to that of a de jure head of state. His recasting of the Congress was extensive, including representation by profession as well as population. He called for specific language that made the Bill of Rights apply to the states, but he was not ready to call for the elimination of states as political entities.

Proposals from the Great Depression and the Sesquicentennial of the Constitution

The Great Depression hit the United States hard. After refusing to join Woodrow Wilson’s League of Nations, the U.S. entered into another period of isolationism, content to go its own way. But the depression of the world economy showed Americans, perhaps once and for all, that there is no true isolation. This realization, along with FDR’s attempts to pack the Supreme Court, and the 150th Anniversary of the Constitution, renewed calls for widespread reform.

Charles Merriam , University of Chicago political science professor, wrote a book published in 1931. His proposals stemmed from the rising of the cities as population and political centers; he proposed reorganizing the cities into independent states, and reorganizing state boundaries to reflect regional interests. He advocated changes in the way laws were passed, treaties were ratified, and that party primaries be regulated by Congress.

The Socialist Party ‘s 1932 platform included many proposed changes to the Constitution. One group concerned voting and elections, including popular election of the President and the ability to hold national referenda. Judicial review would be specifically barred. Worker’s rights would be protected, and child labor barred; nationalization of industry would also be permitted and promoted. Finally, they advocated an easing of the requirements for ratification of constitutional amendments.

Also in 1932, William Kay Wallace , U.S. diplomat, proposed not only changing the Constitution, but replacing it wholesale. His constitution would include guarantees of economic liberty, a right to education, economic security, and leisure. He would replace the states with nine geographically-based entities, each with an equal representation in a national Board of Directors. A President would be chosen from the Board; the new states would have similar systems. He proposed nationalizing all industry, with the government having the power of conscription even in times of peace.

Henry McKee , a California businessman, wrote a book in 1933 that melded several of the plans that had come before. His suggestions for reform are top-heavy on the business side, stressing economics and the causes of unemployment. He proposed adoption of the British political model, elevation of the Federal Reserve to Cabinet status, Ministers of various industries, such as railways and retailing, and a reform of the education system to make finances be a strong part of education.

William Elliot , a Harvard professor or political science, wrote a book in 1935 that stressed national security. He advocated a super-state political entity called a commonwealth, Presidential power to dissolve the House, Congressional selection of Presidential candidates, direct popular election of the President, a reduction in the power of the Senate, multiple vice-presidents, approval of treaties by both houses of Congress, Senators elected at a regional level as well as at-large Senators, and a strengthening of political parties.

In 1937, Malcolm Eiselin called for a new Convention to draft a replacement Constitution. His main thrust was a Parliamentary-style cabinet government, though he proposed many other reforms, such as the abolition of the electoral college, popular referendum and initiative, reconsideration of Presidential terms, modification of the amendment process, and a redefinition of the balance of power between the states and national governments.

Ralph Cram , architect and author, offered a unique approach to Constitutional revision in 1937. He first targeted suffrage, calling for a return to property-based voting rights; he realized this “ideal” would be considered too much, and also proposed residence requirements and tying suffrage to participation in civic volunteerism. He advocated full revision of the Senate, though the House passed by largely unscathed. He modeled his president after the European monarch, with life service and the power to dissolve the legislature. He also required unanimity in any decision by the Supreme Court, replacement of the states with five or six commonwealths, and institution of titles of nobility.

Charles Coleman , with the National Council for the Social Studies, published a model constitution in 1938. It was intended for use in schools, to illustrate constitutionalism. His revision was largely semantic, with an incorporation of the amendments into the main text, rearranging the text to group like sections together, and modernizing the language. Aside from this “reorganization,” several changes were recommended: elimination of the Vice-President, approval of treaties by both houses, by simple majority in each, revision of the electoral college to eliminate electors but leave the electoral vote distribution, states were specifically prohibited from seceding, and the amendment process was modified.

Proposals from World War II

World War II gave reform-minded individuals an opportunity to take up the topic of constitutional revision yet again. With the country in a crisis, the likes of which had not been seen in generations, many thought the time to reform was now.

Henry Hazlitt , a conservative journalist, wrote a book in 1942. His main point was that the time of the War was a perfect time to contemplate changing the Constitution, and that the War was pointing out several of the Constitution’s weaknesses. Like many before him, he advocated the parliamentary/cabinet model and changes in the powers of the President. The Senate would become more like the House of Lords, Senators and the President would be appointed, and Congress would have the vote of no confidence. He noted, however, that his ideal was probably too sweeping, and proposed several less severe reforms, such as elimination of the Electoral College, the line item veto, and setting a retirement age for Supreme Court justices. Above all, though, he felt the amendment process needed particular attention, recommending majority ratification over super-majorities.

Herbert Agar , one of the Twelve Southerners who wrote An Agrarian Manifesto in the 1930’s, wanted to change the Constitution to ensure the survival of civilization itself, in 1942. He was less concerned with structural changes than he was with spiritual ones. He advocated equal rights for non-whites and reform of industry. He commented on the need for a free press, and wanted reforms that would bring more people into the political process. He interestingly did not advocate a parliamentary model, but did call for changes to force the legislature and executive to work more closely together.

Alexander Hehmeyer , an attorney, wrote his book on Constitutional change in 1943. He focused on the post-war period, and wanted to be very realistic in his goals; no utopian reforms. He also though that the war period was a perfect time to institute change, when people were in crisis mode. He also did not advocate a parliamentary model, but rather working within the current system: changes to terms; a specific, codified cabinet; a new budgeting process; ratification of treaties by a simple majority of both houses; a new “freedom from want”; a regular Constitutional Convention; making former Presidents become Senators-at-large; and so on.

Thomas Finletter , a special assistant to the Secretary of State, wrote a book published in 1945. He also focused on the post-war world. He was concerned that the current system of separation of powers was not conducive to American leadership in a peaceful post-war world. Some of his proposals required amendment and some did not. He wanted to change House rules to allow cabinet secretaries to appear regularly before the House for a question period; to alter the seniority system; to increase the number of Congressional joint committees; to create a joint legislative-executive cabinet; and to allow treaties to be approved by the majority of both houses. To facilitate all of his proposals, he advocated making all terms and elections the same, and to allow the President to dissolve Congress and the Presidency, calling for new elections of both branches when a deadlock was reached. While this power was of the President, Congress could force his hand due to its influence on the joint cabinet. His book was written in popular, rather than scholarly, style, in hopes of gaining popular momentum for his suggestions.

Proposals from the Turbulent 1960’s and Early 1970’s

Civil Rights was the topic of the decades following WW2. Judicial activism clearly upset many observers as well as those holding positions of power in the government. Many people proposed changes to over turn one or two Supreme Court decisions, though calls for widespread change continued to be issued as well.

The Council of State Governments met in 1962, and adopted a platform that consisted of suggestions for several amendments that would specifically strengthen states’ rights. It proposed a much state-centric method for amendment and created a “Court of the Union,” which could overrule any Supreme Court decision. The proposals of the Council were widely panned.

Dwight MacDonald wrote an article in the popular magazine Esquire in 1968, that pondered a few potential Constitutional changes. Along with the familiar parliamentary model, MacDonald removed the residency requirement for congresspeople, conscription of all males for military or social service, limited the percentage of the military allowed overseas, limited the amount Congress could spend on defense, linked continuation of the space program to the elimination of poverty, and finally redrew state lines and provided for “city-states.”

The Black Panthers met in 1970, and had a convention to propose changes to the Constitution. The convention never issued a formal statement of proposed changes, but a newspaper account listed the following: a total restructuring of all political boundaries, police forces made up of community volunteers, a military made up of volunteers, free housing and health care, free child care, and a host of proposals to support communist rebels and governments. Though a good share of their proposals would seem to have little to do with the Constitution, and the proposals were tainted by the Panthers’ politics, some of their proposals have eventually become reality, or been heavily debated.

History Professor Leland Baldwin wrote a book on the subject of Constitutional reform in 1972. He felt that the times demanded change, considering the war in Vietnam and the general feeling of rebellion the early 70’s had. He felt the Constitution had two conflicting constituencies it had to serve and guard against: the populace, and the legislators. He proposed redrawing the states, with powers only as granted by the federal government; a parliamentary and cabinet form of government; a complete revamping of the judiciary with pre-emptive judicial review; parties were recognized and encouraged; and the amendment process was modified.

Rexford Tugwell , an economist who worked with FDR, wrote a book finally published in 1974. It was an exhaustive tome, intended for a scholarly audience. his main concerns were that today’s government bore little resemblance to that outlined in the Constitution, and that the amendment process was too rigid to allow for continual, generational change. He was also highly critical of judicial review, unsurprising considering his political roots. His plans for revision are hard to categorize. He was critical of the current system of separation of powers, but he would not have eliminated it, just refined it. He thought the President had too much power, but rather than eliminate the Presidency, he expanded the President’s term and provided for two Vice-Presidents instead of just one. Senators would be appointed for life, a portion of the House was elected on a national scale, several new courts were proposed, and he added a Bill of Responsibility to the Bill of Rights.

Reassessing the Constitution and the Presidency after Watergate

Watergate was a time of deep crisis for many Americans; a crisis of confidence in the Presidency, the Legislature, in the effectiveness of the Constitution itself. Not surprisingly, there were many calls for changes in the Constitution.

Political scientist Charles Hardin published a book in 1974, in direct response to the Watergate scandal. However, he acknowledged previous contemporary authors, indicating that Watergate was not his only motivation. From the Civil War to Watergate, he saw scandals as an inevitable symptom of the structure of government provided by the Constitution. He envisioned a more Parliamentary government, with a strong party flavor. He favored equal terms for the President and Congress, with simultaneous elections and votes of no confidence; at-large members of the House; an official opposition with its own shadow cabinet; and election of the President by simple majority vote.

In a 1974 book about the Presidency, Michael Novak suggested several changes to the office. First, an opposition spokesman would be elected by the House to act in opposition to the President. This person would be legally high-profile, with equal access to the press. A process similar to Question Period would be instituted where the President and his party would answer to the opposition. The President’s cabinet would be required to have a certain percentage of its members come from the opposition party. Finally, he suggested separating head-of-state and chief executive roles, providing for a decennially elected head-of-state to represent the nation. While many of his propositions are parliamentary in nature, he did not advocate adopting a full parliamentary model, feeling that the American people would not like such a system.

Congressman Henry Reuss , of Wisconsin, proposed several changes as a result of Watergate. His main point was the introduction of a vote of no confidence, by three-fifths of the members of Congress, which would trigger new Presidential elections. A later modification would also have the vote trigger congressional elections as well. His proposal was part of a symposium held in 1974, from which ideas of several other influential politicians and historians also emerged.

Proposals from the Bicentennial and Their Critiques

The Bicentennial of the United States, 200 years after the signing of the Declaration of Independence, was a perfect opportunity to reflect on two centuries of Americanism and the documents and ideals that brought the country to that point. Combined with the freshness of Watergate and the Vietnam War, Constitutional revision again was a popular topic.

Conley Dillon , a political science professor, pushed for the creation of a Permanent Commission on Constitutional Review, a plan first put forth in 1969. His call, in 1977, was for a fifteen-member panel, to be established and populated by the President and Congress, to hold hearings on possible changes in the Constitution. Dillon listed several areas in which he felt consideration was needed: Adjustments to the federal structure; changes in the selection and accountability of the President; terms and selection of the members of Congress; the method of judicial selection; the current distribution of power among the branches; the status of political parties; individual and group freedoms; the calling of a Constitutional Convention; and the loss of confidence in the United States Government by the American People. While Dillon listed areas that deserved attention, he did not list ways he thought they should be changed.

Former Michigan Supreme Court Chief Justice Thomas Brennan called for a Constitutional Convention in a 1982 law review article, using the upcoming Constitutional Bicentennial as the impetus. His primary desire for a convention was that it would reaffirm the individual rights of Americans and that it would reaffirm the supremacy of the states in the federal system. He also wanted to see the current Constitution rewritten with more modern language, to reflect the priorities of modern society. For example, the elimination of the requirement of jury trials for federal common-law suits, which are not even entertained in federal courts any longer, and the elimination of the two-year limit on military expenditures, which was moot considering modern annual budgets.

The Committee on the Constitutional System , which was comprised of a small group of scholars and politicians, issued its report on proposed changes to the Constitution in 1987. It proposed six major and several minor changes. The major changes were divided into two categories: those to strengthen parties and those to increase cooperation and coordination between the executive and legislative branches. The latter are more interesting, and included allowing the President to have congress people in the cabinet, decreasing the treaty ratification requirement to a simple majority, but in both houses, and increasing House and Senate terms to four and eight years respectively. Some of the minor changes included the encouragement of a shadow cabinet, differing schedules for congressional and presidential elections, and the ability to have a vote of no confidence to force new elections.

More Proposals from the Bicentennial to the Present

After the Bicentennial came the bicentennial of the Constitution itself, and then of the Bill of Rights, providing a perfect backdrop for reflection on the efficacy, vitality, and longevity of the Constitution.

Arthur Miller , law professor at George Washington University, wrote a book published in 1987, that called for, among other things, the need for increased judicial activism. Miller reflects on the written and unwritten constitutions; one where all people are equal, another where race, gender, or economic status have profound effects on treatment; one where federalism is important, another where its importance has dwindled. While he advocates a global political system, he focuses on the United States. He advocates a unicameral, 100-member Congress, with broad national powers; an even more powerful Supreme Court, replete with non-appellate legal review and enforcement powers; and a permanent executive council, there to advise the President. He also calls for the redrawing of state lines.

Jeremy Miller , law professor at Western State University College of Law, called for a re-evaluation of the Constitution at its 1987 bicentennial. He wanted in particular to do away with paternalistic law, a decrease in the size of government, and an increase in individual freedom. Miller even provides a draft of his proposed document, which is much more detailed than the current Constitution. For example, it goes into detail on religious freedom, defines specifically what “arms” means, details search and seizure and stop and frisk procedures, outlaws abortion, use of mechanical objects for organ transplant; interestingly, neither voting rights nor equal protection are guaranteed. Like the Chinese Constitution , among others, it also lists the duties of citizens. He similarly outlines many changes to the structure of the government, including term limits, creation of a national lottery, and legislative review of judicial review.

Proposals found on the Internet

Vile’s “present” ended in 1991. Since that time, the Internet exploded onto the scene, and the ability for the common person to publish his or her own thoughts to the world have become infinitely easier than at any time in the past. Below are summaries to plans found on the Internet, with links to Web sites expounding on those plans.

Kirby Palm presents a list of suggested amendments. The categories are “Applicability” (who the Constitution and Bill of Rights applies to), “Offense and Recourse” (what constitutes a governmental violation of the Constitution and what can be done about it), and “Secession” (clarifying the process a state must take to secede from the United States).

Abe’s Indignation League advocates the calling of a Constitutional Convention to address specific points. It is primarily concerned with setting a certain ethical standard to American politics, as well as clarifying and strengthening states’ rights. It also proposes a rewrite of the current Constitution using more modern, understandable language, limits on spending on public projects, term limits, and campaign spending reform.

Tom Campbell , U.S. Representative from California, advocates revising the selection of Senators to make the Senate proportional. In his plan, the members of the House would elect the members of the Senate from their own ranks. Special elections would be held to replace the leaving Representatives. He notes the difficulty of circumventing the equality clause, but contends that a convention could get around it by writing a totally new Constitution.

The Campaign for Responsible Government advocates a parliamentary form of government, and includes a model document to illustrate the structure of such a government. Included are new terms, restrictions on campaign times and spending, and a restriction on non-governmental earnings. It also includes sample state constitutions.

The U.S. Constitution for 21st Century site advocates the adoption of a new constitution for the United States for the 21st century. A quote from the site: “Unique, innovative, venerable in its time, our more than 200-year old Constitution now has become antiquated and obsolete — even detrimental and dangerous — for the nation.”

The Constitution-21 site also advocates the adoption of a new constitution for the United States for the 21st century. A quote from the site: “We here strive to create the best possible model of government without reference to any reaction from this or that pressure group.”

Ralph Bass has produced a list of ten amendments that he says could “bring back our government into line with our historic American political and economic values”. The amendments include a term limits amendment, a defense of marriage amendment, the line-item veto, imposition of a national sales tax, and an amendment restricting “birth citizenship” to those born of two citizens.

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The Importance of Books in Our Lives

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• A Democratic Plan to Increase Taxes on the Superrich
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To the Editor:

Re “ Our Bookshelves, Ourselves ,” by Margaret Renkl (Opinion guest essay, Aug. 29):

On Oct. 6 last year, my three children and I lost our home and our dog, Lulu, in a fire.

Of all the objects that were lost that day, the loss of our books has been the most difficult to absorb, and grief over their loss appears in odd, unpredictable ways. (For example, my youngest son has refused to even look at the replacement copy of “The Wild Robot” that I bought him within days of the blaze.)

The books that we were in the middle of reading. The books with jam smears and with water marks from splashy tub read-out-loud sessions. My duct-taped copy of “Women Who Run With the Wolves.” The underlines, the earmarks, the smell of used books that were previously owned by libraries.

This article made me cry with joy and relief. And it made all four of us feel somehow comforted knowing there are people who might understand that what was lost was irreplaceable.

Niki Leffingwell Missoula, Mont.

Like Margaret Renkl, I’m a bibliophile. I’ve been a member of the same book club for 33 years. My family writes books and writes in books, and I am incapable of walking past a Little Free Library without stopping.

Recently, I’ve grown to love audiobooks, too; my husband, Rob, and I listen during road trips. I loved the evocative narrations of “James,” “Circe,” “Hamnet” and “Their Eyes Were Watching God,” and William Hootkins’s interpretation of “Moby-Dick,” a masterpiece that neither Rob nor I had conquered on our own.

Yet I agree with Ms. Renkl: “I will always prefer a book I can hold in my hand.” I like underlining the good parts, scribbling in the margins and shelving a beloved novel among favorites from other chapters of my life. I even have two designated bookshelves for signed books: Tom Wolfe, Sue Grafton, Dr. Spock, Mario Vargas Llosa.

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