Is it Time for a New Constitutional Convention?

How often should we make radical changes in how we are governed?

How about never?

In 1787 delegates from the original 13 states met in Philadelphia and proposed a new constitution to replace the grossly inadequate Articles of Confederation. After heated debates, the necessary number of states ratified this proposal, adopting what is now, as amended, our Constitution.

The Cincinnati Inquirer recently ran a commentary calling for a new constitutional convention. Even more recently, the idea was seconded by Erwin Chemerinsky, Dean of the University of California Law School at Berkeley.

The idea is a tempting one, given the shambles our Supreme Court has made of constitutional law and the Constitution's imperfections which created the opportunities for it to do this.

Readers who react indignantly to any suggestion that our current Constitution is improvable should be reminded that the people who wrote it never claimed it was perfect. As Alexander Hamilton noted at the time, "I never expect to see a perfect work from imperfect men."

And the Constitution included an amendment clause, which would be inadvisable in a document if it was already perfect. Why change a perfect document?

The present Constitution obviously needs improvement. But on balance, holding another convention would probably be a bad idea.

The prologue to my 1981 college textbook weighed the opportunities against the dangers, noted the changed circumstances since 1787, and concluded flatly it was unlikely that a new convention could improve the country. And this was decades before the current political mess developed.

Granted, a new constitutional convention would have one obvious advantage over the 1787 convention: experience accumulated in the meantime.

Two hundred thirty-six years under the present Constitution, a Civil War, a couple of world wars as well as many "small" ones, a Depression and a multiplicity of recessions, three presidential impeachment crises, and more than 600 volumes of Supreme Court decisions have taught us much about what works and what does not.

And we could also consider experience with constitutions in other countries.

However, the disadvantages faced by a new convention would far outweigh these advantages.

In 1787 delegates maintained strict secrecy until they had agreed on a final document. A new convention would suffer from intense news coverage and would probably have to be televised live. But secrecy in 1787 allowed delegates the flexibility to negotiate delicate compromises without losing political face when they had to back down.

In 1787 there were no political parties, an immense advantage. Individual convention delegates were able to negotiate as they personally felt best.

Unlike 1787, a new convention would be under immense pressure from organized interest groups, and not only by domestic groups. Foreign governments would not be able to restrain themselves from trying to shape the new constitution to suit their own interests.

Furthermore, the current Constitution is not as obviously defective as the Articles of Confederation which it replaced. Many people would consider a new constitution totally unnecessary and even a step backward.

The current Constitution was barely ratified, and a new one would have an even tougher time. So why spend time, effort, and attention drafting a document that would probably never go into effect?

A variation on chess that I invented, Perplexichess, allows players to change a rule instead of moving a piece. Experience with this game, in college classes and other groups, shows that rule changes often produce results that were neither expected nor desired by the player who changed them.

And real life is far more complicated than any game, which makes it even harder to predict the consequences of major legal changes. A new constitution would undoubtedly incorporate major changes.

It will probably be safer to continue our historical, piecemeal approach to constitutional change, one amendment, one judicial decision, at a time.

Gradually, these smaller changes could bring us closer to an ideal political system.