Should We Have a New Constitutional Convention?

David Hume Kennerly/Getty Images
Chief Justice Warren Burger and newly appointed Justice Sandra Day O’Connor on the steps of the Supreme Court building, Washington, D.C., September 1981

In his letter to President Reagan written on June 17, 1986, Warren Burger explained his unique reason for resigning as chief justice of the United States. He had accepted the position of chairman of the Commission on the Bicentennial of the Constitution, making him responsible for telling the story of our great constitutional system to the American people, a task that he could not adequately perform while continuing in his judicial office.1 I remember that Justice Thurgood Marshall did not completely share Warren Burger’s veneration for all parts of the Constitution. The title—Framed—that Sanford Levinson, a respected professor of constitutional law at the University of Texas, has chosen for his recent 437-page book about the United States Constitution suggests that he, too, has misgivings about our country’s founding document.

In Framed, Levinson does not try to provide answers to debatable questions of constitutional interpretation. Instead, he primarily assesses the wisdom of provisions whose meaning is perfectly clear. We can readily understand the language of the Twentieth Amendment that ends the terms of service of the president and the vice- president at noon on the twentieth day of January, but this does not mean that we understand why that date was selected, or whether events have occurred since that might make it appropriate to shorten the period between an election and a new president’s assumption of executive power.

The book’s title, Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.

Readers may consider that possibility not only when they are evaluating Levinson’s perceptive description of mismatches between the document’s response to eighteenth-century problems and to problems confronting the much different modern-day world, but especially when they reach Levinson’s conclusion:

We need a new constitutional convention, one that could engage in a comprehensive overview of the US Constitution and the utility of many of its provisions to twenty-first century Americans.

Who would be the framers of this new Constitution? Levinson “would advocate that delegates from each state, proportionate to overall population, be selected by lottery, with very limited restrictions on selection (the most obvious one being age).” He would…

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