Rewriting the Constitution

An Intellectual Exercise
I tend to think the "founding fathers" did a pretty good job when they wrote the US Constitution. Sure, there are things I wish they'd been clearer on, but they put together a document that has carried us through some very tumultuous times, including things they couldn’t possibly have predicted. Even now, 220 years after it was written, and at a time when many of its clauses are hotly debated, it seems that we generally agree the constitution was a well thought out document.

For quite a while, though, I've been thinking about what that document would look like if it were written today, with the benefit of all the insights we’ve gained and lessons we’ve learned since it was written. Would we keep it at the same relatively high level of detail? Would we be more specific about some of the civil liberties clauses that are contentious now—or would we leave them out altogether? Would we keep the same balance of power between the federal government and the states?

Starting in early 2009, I’m going to launch an effort to find out. It will be called Rewriting the Constitution, it will involve doing exactly that, and it will be documented here.

I’m not advocating that the Constitution should actually be replaced, nor do I want to do anything with the end product (such as sending it to Congress for their consideration)—I just think it would be an interesting intellectual exercise

Who would be involved?
I couldn’t do it alone. This is not an exercise that lends itself to individual effort. Even if I could rein in my more extreme power-hungry tendencies (I might be tempted to include a “people named ‘Zahid’ get to cast 20,000 votes” clause), let’s face it—I don’t represent a broad array of opinions, and you can’t have a governing document that works for 10% or even 50% of the people.

So my first task will be to assemble a group of interested but non-like-minded individuals to participate equally in this task—preferably, bright people who aren’t experts in constitutional law or jurisprudence. Fifteen years ago, I went to law school, but I haven't practiced law for the last eleven, and I'm certainly nobody's constitutional scholar. I think that’s a good thing—I hope to find people to join me for this effort who are thoughtful about the issues, but it might be counter-productive to have experts participating in more than an advisory capacity.

I’d want these to be people who could leave political baggage at the door. For instance, I’m not overly favorable toward gun ownership rights, but I feel that I could participate constructively in discussions about whether we would retain (or maybe even strengthen) the equivalent of the second amendment.

Oh yeah ... these people would have to be in or near Sacramento, California (known as "the cradle of democracy" to many people who have no idea what they're talking about). We don't have the travel budget the founding fathers had.

Timeline
I think this effort will take about a year (I'm not planning to quit my day job to do this). I suspect we’d want to allocate time for:

• Study of the constitution, via the text and contemporary writings (specifically the Federalist Papers)
• Study of constitutional jurisprudence
• Study of constitutional amendments (both successfully passed ones and failed attempts)
• Meeting with scholars to answer questions and offer insight
• Drafting a document
• Compromise on the final contents, encouraged as necessary by collective drinking

Ground Rules
There’s only one: our goal has to be to generate a document that would have a chance of being approved, and that could be used to fairly govern the United States as it exists now. (So don’t even think about including a “liberals have to live in Alaska” clause.)

Of course, we can (as the founding fathers did) come up with our own rules about the approval process, but those rules would have to pass some sort of “reasonableness” test. (So don’t even think about a “conservatives don’t get to participate in decisions about adopting this document” rule.)

Things to Think About
Beyond that ground rule, once we have a group of participants on board, pretty much everything else is open to group decision—much as it was for the founding fathers. I suspect that most decisions will be made in the course of our research and analysis, not at the outset. I suspect the following topics might be of particular interest:

• How detailed should the document be? If we were to include something about copyright law, would we do so in a single sentence, as the founding fathers did? Or would it be more like ten pages? Would we be more precise about separation between church and state?
• How would we allocate power between the federal government and the individual states?
• Would we want to offer more guidance than the founding fathers did on how strictly the Constitution should be interpreted?
• Is the current mechanism for amending the document appropriate, or should it be modified?
• Would the rights of non-citizens be addressed? Would we talk about whether it would be okay to detain them without trial? Or to torture them?
• Would we include a right to privacy?

I'm looking forward to finding out!