Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution

6 Pages Posted: 22 Mar 2015

See all articles by James E. Fleming

James E. Fleming

Boston University - School of Law

Date Written: March 20, 2015

Abstract

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.

Keywords: Attitude of fidelity, Constitution-perfecting theory, constitutional amendment, constitutional convention, constitutional dysfunction, constitutional failure, rewriting the Constitution

JEL Classification: K19, K39, K49

Suggested Citation

Fleming, James E., Is it Time to Rewrite the Constitution? Fidelity to Our Imperfect Constitution (March 20, 2015). Wisconsin Law Review Online, 2015, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 15-13. Available at SSRN: https://ssrn.com/abstract=2581528

James E. Fleming (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-2942 (Phone)
617-353-3077 (Fax)

HOME PAGE: http://www.bu.edu/law/faculty/profiles/bios/full-time/fleming_j.html

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