The Recurring Constitutional Convention: Therapy for a Democratic Constitutional Republic Paralyzed by Hypocrisy

Abstract

Not surprisingly, the values written into our Constitution decades or even centuries ago do not closely match our present values. The Constitution’s too restrictive and undemocratic Article V mechanism for amendment has failed to permit needed updating of our written Constitution as our values have evolved. The inadequacy of Article V has tempted the left to seek (successfully) necessary but “unauthorized” (unauthorized by the text of the Constitution anyway) constitutional change through judicial decision and has led the right eventually to acquiesce in only some of the resulting “unauthorized” constitutional change.

After setting the stage for evaluating the competing schools of constitutional interpretation by briefly outlining our conflicting commitments to constitutionalism, democracy and justice, this essay explains the failure of both the right- and left-wings of constitutional theory to face candidly the consitutional “values gap” and to deal with it in a principled way. The constitutional “left” is trapped by the hypocrisy of advocating extra-textual judicial decision making while clinging to the inconsistent ideal of constitutional democracy. And leading originalists, particularly Judge Robert Bork and Justice Antonin Scalia, are willing to acquiesce, albeit selectively, in extra-textual interpretations because they are unwilling to live with the implications of their own originalism. This essay finally explores the relative merits of possible changes to Article V designed to remedy the problems identified and proposes and defends an automatic, episodic constitutional convention as the best all-around solution.

Keywords: Article V, originalism, constitutional convention, Convention of the States